Merino v. New York City Transit Authority , 89 N.Y.2d 824 ( 1996 )

89 N.Y.2d 824 (1996) 675 N.E.2d 1222 653 N.Y.S.2d 270

Francisco Merino, Appellant,
v.
New York City Transit Authority, Respondent.

Court of Appeals of the State of New York.

Argued October 16, 1996. Decided November 14, 1996.

Pollack, Pollack, Isaac & DeCicco, New York City (Brian J. Isaac and Alan M. Shapey of counsel), for appellant.

Lawrence A. Silver, New York City, and Wallace D. Gossett for respondent.

Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, LEVINE and CIPARICK concur; Judge SMITH taking no part.

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

On April 9, 1989, after leaving work at 3:00 A.M. and consuming several beers, plaintiff went to the 183rd Street subway station in the Bronx. Dizzy and affected by the alcohol, plaintiff, who had been standing at the edge of the platform, found himself on the tracks as a train approached. He was struck by the train and suffered various injuries including the loss of his left arm.

In his suit against the New York City Transit Authority plaintiff alleged several theories of negligence. After trial the court set aside a verdict in plaintiff's favor and ordered a new trial, and the Appellate Division affirmed (183 AD2d 458). After a second plaintiff's verdict, a divided Appellate Division reversed and dismissed the complaint (218 AD2d 451). The court concluded, in essence, that plaintiff had failed to establish the Transit Authority's negligence in lighting the accident site and causation.

As the Appellate Division correctly determined, plaintiff failed to show that defendant breached any duty owed to him. Plaintiff, moreover, failed to establish that an internal Transit Authority station planning guide, on which his expert relied to claim the station had inadequate lighting, constituted a standard of reasonable care applicable to this station (see, Schwartz v New York State Thruway Auth., 95 AD2d 928, affd 61 N.Y.2d 955). Even if plaintiff had proven breach of a duty, he failed to show that the defendant's alleged negligence was a substantial factor in causing his injury (Derdiarian v Felix Contr. Co., 51 N.Y.2d 308, 315).

Order affirmed, with costs, in a memorandum.