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Wilder Selzer v. New York City Transit Authority

October 4, 2012


Selzer v New York City Tr. Auth.

Appellate Division, First Department

Catterson, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 4, 2012

David B. Saxe,J.P. John W. Sweeny, Jr. Rolando T. Acosta Leland G. DeGrasse Rosalyn H. Richter, JJ. Index 112370/07

Defendant appeals from the order of the Supreme Court, New York County (Joan M. Kenney, J.), entered May 31, 2011, which granted plaintiff's motion pursuant to CPLR 4404 to set aside the jury verdict in favor of defendant and ordered a new trial. Armienti DeBellis Guglielmo & Rhoden LLC, New York (Vanessa M. Corchia of counsel), and Wallace D. Gossett, Brooklyn, for appellant. Langsam Law, New York (Kenneth J. Gorman of counsel), for respondent. CATTERSON, J.

This appeal arises out of a personal injury action in which the plaintiff alleges that he sustained injuries as he was exiting a subway car on the R train at Whitehall Street, Manhattan. At trial, the plaintiff testified that the defendant's conductor negligently closed the doors on his ankle. The conductor of the train testified that he followed the correct procedures as to opening and closing subway doors, and that nothing out of the ordinary happened on the day of the plaintiff's accident. There were no witnesses to the incident according to the plaintiff, other than the "O-mouthed" passengers remaining on the train as it pulled out of the station. As the motion court acknowledged, this case from the beginning rested on a credibility issue.

The record reflects that at trial, the defense counsel advanced the theory that the plaintiff's account of his accident was implausible. In his opening remarks, the defense counsel told the jury, without objection, that the evidence would establish that "the only way [the accident] could have happened was because of some fault on the part of the plaintiff." Defense counsel told the jury "just use your common sense to try to understand the mechanics of something like this happening."

The plaintiff testified as follows: On May 11, 2007, he was getting ready for an evening performance in Manhattan when he realized he had to return to his home in Staten Island to retrieve a forgotten item of clothing for the performance; he boarded the R train at 23rd Street station for the 20-25 minute trip to Whitehall Street, the last stop in Manhattan before the train continued to Brooklyn; he had not brought a book or video game with him, but he was "going over the show in his mind and thinking about it."

The plaintiff testified that upon reaching Whitehall Street, he exited the subway car at a normal pace. He described the accident as follows: "I put my left foot onto the platform, and then as I was passing through the doorway[,] I felt an impact and I fell forward onto my hands ...When I looked out at the subway car[,] I saw that my leg was still on the subway and that I was lying on the ground, and then I saw the faces of the people in the car who all looked very surprised, their faces were all in an O-mouthed expression of surprise ... I pulled the leg off of the train[,] and almost immediately after the train doors closed and the train took off."

In cross-examining the plaintiff, the defense counsel attempted to show that the plaintiff's right ankle was caught in the subway door because the plaintiff was not paying attention and moved to exit the subway car too late rather than because the train conductor negligently closed the doors as the plaintiff was exiting the subway car. Further, defense counsel attempted to elicit the fact that the plaintiff could not risk failing to alight at the last stop in Manhattan. For example, defense counsel asked whether "White Hall Street station is the last stop ... in Manhattan in order to get to the ferry," and whether if he missed that stop, he would "have to travel [all the way] to Brooklyn."

The conductor of the train on which the plaintiff alleged he was riding testified that on the day of the accident he followed the procedures that are in place for all conductors with respect to the opening and closing of doors. Conductors open the doors using two buttons on the master control panel; they wait for a specified time, then make an announcement to stand clear of the closing doors, and then they close the doors. The conductor testified that the lights on the panel would indicate if the doors had not closed. The conductor further testified that he did not remember seeing anyone fall or get caught in the doors in the Whitehall Street station at or around the time that the plaintiff allegedly incurred the injury.

In summation, the defense counsel posited that the plaintiff "jetted out" of the train at the last second. Defense counsel stated, "I am not a witness. What I say is not testimony. I'm only giving it to you to ponder." He continued: "After all, if you imagine a person standing in a doorway just standing there when the doors closed -- and all of you [have] seen this happen[] and I know this, during jury selection, you've all seen doors close ...

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