| Budik v CSX Transp., Inc. |
| 2011 NY Slip Op 07325 [88 AD3d 1097] |
| October 20, 2011 |
| Appellate Division, Third Department |
| Barbara L. Budik, Individually and as Executor of Joseph P. Budik,Deceased, Appellant, v CSX Transportation, Inc., et al.,Respondents. |
—[*1] Basch & Keegan, L.L.P., Kingston (Derek J. Spada of counsel), for appellant. Eckert, Seamans, Cherin & Mellott, White Plains (Lawrence R. Bailey Jr. of counsel), forrespondents.
Lahtinen, J. Appeal from an order of the Supreme Court (Zwack, J.), entered July 30, 2010 inUlster County, which granted defendants' motion for summary judgment dismissing thecomplaint.
Plaintiff's husband died as a result of injuries sustained when a train of defendant CSXTransportation, Inc. struck his Toyota Tacoma pickup truck at a private railroad crossing in theTown of Saugerties, Ulster County. The crossing was part of a private road that plaintiff anddecedent used to gain access to their home. It was located in a general area where there areseveral private crossings and, at some of the crossings, there reportedly had been many previousaccidents between trains and vehicles. Shortly after 6:00 a.m. on April 7, 2005, decedent wasdriving west on the private road when the front of his truck went onto the tracks and was hit bythe southbound train traveling just under 50 miles per hour that was operated by defendant JohnLacona II. Lacona admittedly did not sound the train's whistle or apply its brakes prior to impact.Plaintiff commenced this wrongful death action and, following disclosure, defendants moved forsummary judgment dismissing the complaint. Supreme Court granted the motion and plaintiffappeals.
Plaintiff is held to a lesser burden of proof in this wrongful death action (see [*2]Noseworthy v City of New York, 298 NY 76, 80-81 [1948]).We have previously held that, in an action where Noseworthy is applicable, proof inopposition to a summary judgment motion that is "admittedly slight and clearly circumstantial"may nevertheless be sufficient to raise a triable issue (Zwart v Town of Wallkill, 192AD2d 831, 834 [1993]; see Berliner v Thompson, 166 AD2d 78, 82 [1991]). Defendantsplaced significant reliance in their motion on Lacona's deposition testimony that he could not seedecedent's truck until it moved toward the tracks when the train was 100 to 150 feet from it and,thus, defendants contend that the accident was unavoidable and sounding the train's whistlewould not have helped. The critical facts regarding the distance and the movement of decedent'struck were exclusively within the knowledge of the movants, which generally is not a properbasis for summary judgment (see Tenkate v Moore, 274 AD2d 934, 935 [2000];Zwart v Town of Wallkill, 192 AD2d at 833-834). However, even if this proof satisfieddefendants' prima facie burden, plaintiff produced evidence sufficient under the reduced burdento raise a triable issue. In response to questioning at his deposition about the events immediatelybefore the accident, Lacona acknowledged seeing decedent's truck, wondering if he was going tostop, saying twice to the conductor, "Is he going to stop?", and hearing the conductor thenrespond, "I don't know." All of this occurred before impact. Although circumstantial, thistestimony is sufficient to raise an issue as to whether Lacona observed decedent farther awaythan his estimate of 100 to 150 feet and, thus, whether there was time to warn decedent bysounding the train's whistle.
There is also ample proof to raise a factual issue regarding plaintiff's contention thatvegetation in CSX's right-of-way obstructed decedent's sight distance contributing to theaccident. Initially, we note that we are unpersuaded by defendants' assertion that, under the factsalleged by plaintiff, this issue is necessarily preempted by federal law (see 49 USC§ 20106; Shanklin v Norfolk S. Ry. Co., 369 F3d 978, 985-988 [6th Cir 2004];Peters v Union Pac. R. Co., 455 F Supp 2d 998, 1003-1004 [WD Mo 2006]; seealso William E. Kenworthy, Transportation Safety and Insurance Law § 3.04 [4] [c];cf. Russell v Fusco, 267 AD2d 738, 739 [1999] [obstruction caused by overgrownvegetation considered as part of common-law negligence action arising from collision betweenvehicle and train]). Plaintiff stated in her affidavit that CSX had not cut the vegetation in itsright-of-way since the late 1990s, she described growth in the right-of-way, and opined that"sight distance was . . . 100 to 150 [feet] when stopped at a point where the trainwould not strike your vehicle." In addition, a police report in the record lists limited sightdistance as a cause of the accident, and Lacona answered in the affirmative when asked at hisdeposition whether vegetation blocked his view of decedent's truck. There are triable issues and,accordingly, defendants' motion should not have been granted (see Russell v Fusco, 267AD2d at 739-740; E. Mower & Son v Consolidated Rail Corp., 249 AD2d 809, 810-811[1998]).
Peters, J.P., Spain, Stein and Egan Jr., JJ., concur. Ordered that the order is reversed, on thelaw, with costs, and motion denied.