Opinion
Argued October 16, 1996
Decided November 14, 1996
APPEAL from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered March 5, 1996, which, with two Justices dissenting, (1) reversed, on the law, a judgment of the Supreme Court (Anita R. Florio, J.), entered in Bronx County upon a verdict finding defendant 76% responsible and plaintiff 24% responsible for the accident which led to plaintiff's personal injuries, and awarding plaintiff damages against defendant in the amount of $1,252,647.85 plus future damages to be paid by the purchase of annuity policies, and (2) dismissed the complaint.
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.
Merino v New York City Tr. Auth., 218 A.D.2d 451, affirmed.
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 A.D.2d 458). After a second plaintiff's verdict, a divided Appellate Division reversed and dismissed the complaint ( 218 A.D.2d 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 A.D.2d 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).
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, LEVINE and CIPARICK concur; Judge SMITH taking no part.
Order affirmed, with costs, in a memorandum.