New York State Court of Claims

New York State Court of Claims
RAILROAD v. THE STATE OF NEW YORK, # 2018-029-058, Claim No. 126012, Motion No. M-90878

Synopsis

Twenty-six joined claims against the State of New York alleged negligence arising from a Metro-North commuter train collision with an SUV on February 3, 2015, at the Commerce Street highway-rail grade crossing in the Town of Mt. Pleasant. The collision resulted in multiple deaths and injuries. The court treated defendant's motion to dismiss all twenty-six joined claims as a motion for summary judgment pursuant to CPLR 3211(c), granted the motion, and dismissed the claims.

Case information

UID: 2018-029-058
Claimant(s): IN RE: METRO-NORTH RAILROAD COLLISION AT VALHALLA, NEW YORK FEBRUARY 3, 2015
Claimant short name: RAILROAD
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126012
Motion number(s): M-90878
Cross-motion number(s):
Judge: STEPHEN J. MIGNANO
Claimant's attorney: WINGATE, RUSSOTTI, SHAPIRO & HALPERIN, LLP
By: Philip Russotti, Esq. and Paul Cordella, Esq.
THE KANTOR LAW FIRM
By: Steven L. Kantor, Esq.
Defendant's attorney: BARBARA D. UNDERWOOD, ATTORNEY GENERAL
By: Albert E. Masry, Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 15, 2018
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

By decision and order filed June 15, 2017, the court joined, for pre-trial and trial proceedings related to liability, 26 claims(1) for negligence against the State of New York for injuries and deaths resulting from a commuter train colliding with an SUV on February 3, 2015, at the Commerce Street highway-rail grade crossing in the Town of Mt. Pleasant, New York. The SUV was driven by Ellen Brody, who was killed. The collision caused the track's third rail to detach and enter into the train's first car, killing five passengers and injuring several others, including the train engineer, Steven Smalls, Jr., a claimant in this action. Defendant filed answers with affirmative defenses.

The joined claims contain allegations concerning: the adequacy of warning signs, roadway markings and other safety mechanisms along Commerce Street to alert a motorist that she was approaching a grade crossing; the operation of the train and the design or construction of the tracks; the failure to close the site or to implement safety upgrades to the site for which federal funds were available; the failure to properly direct traffic from an earlier car accident on the Taconic State Parkway ("Taconic"); and the timing of traffic lights at the crossing's intersection with the Taconic, which claimants assert did not comply with the Federal Manual on Uniform Traffic Control Devices ("MUTCD").

Discovery was stayed pending completion of the investigation by the National Transportation Safety Board ("NTSB") and issuance of its accident report. After the NTSB Report was issued, defendant filed a single CPLR 3211(a)(7) motion to dismiss the 26 joined claims, supported by an affirmation by Assistant Attorney General Albert E. Masry ("Masry Aff."), with attached exhibits. The motion was based on defendant's affirmative defenses asserting that claimants have failed to state a cause of action, and that the State has governmental immunity for the alleged acts of negligence. The only claimants to file oppositions were Alan Brody, individually and as the administrator of his deceased wife's estate ("Brody"), and the train engineer, Steven Smalls, Jr. and his wife ("Smalls"). The Brody opposition is supported by the affirmation of attorney Philip Russotti ("Russotti Aff."),(2) with attached exhibits. The Smalls opposition is supported by the affirmation of attorney Steven L. Kantor ("Kantor Aff."), with attached exhibits.

Pursuant to CPLR 3211(c), the court issued an interim order filed January 10, 2018 notifying all the parties that it was considering treating the motion to dismiss as a motion for summary judgment, and an order filed February 5, 2018, directing that: defendant had 45 days in which to file and serve any additional admissible evidence it wanted the court to consider; all the claimants had 30 days in which to respond to defendant's submission; and any reply and sur-replies to be submitted pursuant to the timing prescribed by the CPLR.

On February 26, 2018, defendant filed a supplemental affirmation by Assistant Attorney General Masry ("Masry Supp. Aff.") in support of summary judgment, attaching as exhibit A an affidavit by Richard Hope ("Hope Aff."), who witnessed the incident. After a stipulated adjournment, only Brody opposed the supplemental submission by defendant with an affirmation by attorney Paul Cordella ("Cordella Aff."),(3) and attached exhibits. Defendant filed a supplemental reply affirmation ("Masry Supp. Rep. Aff.'). The court has not received any sur-replies.

The standards for summary judgment are well settled. Summary judgment will be granted only when the party seeking summary judgment has established that there are no triable issues of fact (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). To prevail, the party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law tendering evidentiary proof in admissible form. "CPLR 3212 [b] provides that a summary judgment motion 'shall be supported by affidavit' of a person 'having knowledge of the facts' as well as other admissible evidence" (JMD Holding Corp. v Cong. Fin. Corp., 4 NY3d 373, 385 [2005]; see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]), such as deposition transcripts and other proof annexed to an attorney's affirmation (see Alvarez at 324; Olan v Farrell Lines, 64 NY2d 1092 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). The evidence is to be viewed in a way that most benefits the non-moving party (Crosland v New York City Transit Auth., 68 NY2d 165, 168, n. 2 [1986]). Absent a sufficient showing, the court should deny the motion without regard to the strength of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Once the initial showing has been made, the burden shifts to the party opposing the motion for summary judgment to rebut the prima facie showing by producing evidentiary proof in admissible form sufficient to require a trial of material issues of fact (see Kaufman v Silver, 90 NY2d 204, 208 [1997]).

Defendant submitted the following documents in support of the motion to dismiss: U.S. Department of Transportation Crossing Inventory Forms (Exh. A); the pleadings in the joined claims (Exh. B [on CD-Rom]); Google maps (Exhs. C-D); Code of the Town of Mt. Pleasant, Ch. 206 ("Mt. Pleasant Code") (Exh. E); pleadings in one of the related Supreme Court actions (Exh. F); affidavits by Clifford Thomas ("Thomas Aff."), the Director of the Rail Safety Bureau for NYSDOT (Exh. G), and Jorge Argote ("Argote Aff."), the Residency Engineer for Region 8, Residency 8-9 for NYSDOT (Exh. H); Record Plans re: the Taconic (Exh. H-1); decision and order in Vardi v State of New York, Claim No. 128127, Motion No. M-89059 [Ct Cl, Scuccimarra, J., Feb. 2, 2017] (Exh. I); and two of this court's decisions and orders (Exhs. J-K).

The Thomas, Argote and Hope affidavits submitted by defendant are admissible evidence (see CPLR 3212 [b] and JMD Holding Corp. v Cong. Fin. Corp., 4 NY3d 373, 385 [2005]). The court takes judicial notice of the Mt. Pleasant Code (see CPLR 4511 [a] and Roemer v Village of Ardsley, 49 Misc 3d 1213(A), fn. 1 [Westchester Cty Sup Ct, Ruderman, J., 2016] [citing CPLR 4511 (a), fn. 1]). The court also takes judicial notice of its own records, those of the Supreme Court, and records of the NYSDOT and the Federal Railroad Authority (see e.g. Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 19-20 [2d Dept 2009] [discussing scope of court's power to take judicial notice of reliable records]). The final NTSB Report, with conclusions, submitted by defendant in its initial reply papers is not admissible evidence (see 49 U.S.C. 1154 [b]).(4) The unsworn NTSB testimony of the train engineer, Mr. Smalls, is inadmissible hearsay.

The admissible documents submitted by defendant provide the following undisputed facts: Defendant does not own, manage, control, maintain or repair Commerce Street, the grade crossing, or the adjacent land or structures, signs, vegetation, and lighting on the land or at the grade crossing (Thomas Aff. and Argote Aff., Exhs. G and H). Defendant did not install, and does not operate or maintain, the grade crossing advance warning system, the railroad crossing gates, the track or the roadway bed in the crossing, and did not design or install the train rails (Thomas Aff., 5, 6; Argote Aff., 5, 6, 11, 12). Metro-North admitted in the Supreme Court action that it owned, operated and maintained Train No. 659, the train that hit Mrs. Brody's vehicle (Exh. F [Metro-North Answer, Sup. Ct.] at pg. 2).

The Town of Mt. Pleasant ("Mt. Pleasant") regulates traffic on Commerce Street (Exhs. D (Google maps), E [Mt. Pleasant Code]). Mt. Pleasant has jurisdiction over Commerce Street between Lakeview Avenue and the Commerce Street grade crossing, and is responsible for installing and maintaining advance warning signs and pavement markings along the road. Metro-North, which is part of the MTA, has jurisdiction over, and responsibility for, the management, operation and maintenance of the Commerce Street grade crossing, including signs and signals, gates and warning flashers (Thomas Aff., 4-6; see Exhs. A [crossing inventory form](5) and K [4/27/17 decision and order]).(6)

The Taconic Parkway, a state-owned and maintained highway, lies to the east of the Commerce Street grade crossing. Defendant operates and maintains traffic control signals that regulate traffic through the intersection of Commerce Street and the Taconic (Exh. C [Google map]; Argote Aff., 3). Defendant does not dispute claimants' characterization of the purpose of such a system, which is to preempt the normal sequence of traffic control signals (red, yellow and green lights) when trains approach a grade crossing, to avoid the entrapment of highway vehicles on the tracks and the crossing (see MUTCD 8C.09).(7)

The federal government allocates funds to defendant that it can use to reimburse an operating railroad for work it does to enhance safety at a grade crossing (Thomas Aff., 7). NYSDOT's Rail Safety Bureau administers these federal funds as part of a federal "set-aside program" that requires the State to contribute 10% matching funds toward each safety enhancement project (id. at 8). In 2009, defendant considered safety enhancement projects at the Commerce Street grade crossing and other grade crossings across the State. Defendant and Metro-North did not finalize a safety enhancement project for the Commerce Street grade crossing, and defendant did not reimburse Metro-North with any federal or state funds (id. at 10).

On February 3, 2015, before the train collision, the New York State Police shut down southbound traffic on the Taconic at the Lakeview Avenue intersection due to an accident, which forced motorists, including Ellen Brody, to detour onto surrounding roadways. Mrs. Brody drove a black Mercedes SUV Northeast on Commerce Street to the Commerce Street grade crossing (Exh. B to Aff. in Support [pleadings]).

Richard Hope, who was driving a vehicle directly behind Mrs. Brody before the accident, attests in an affidavit defendant submitted in further support of summary judgment (Hope Aff., Exh. A to Masry Supp. Aff.) that traffic was moving slowly. The black Mercedes SUV stopped, so Mr. Hope did the same. Seconds after they stopped their cars, train-crossing lights started flashing and the arm of the gate came down, hitting the rear window of the SUV. "From my perspective, I do not believe that the SUV was on the tracks at that time, maybe the front part just barely making it. It was nighttime and due to the bend in the roadway and the big size of the SUV, I could not see if there were cars directly in front of the SUV that had stopped on the tracks" (Hope Aff., 6). He saw there was no car behind him so he put his car in reverse and made room for the SUV to back up. A woman got out on the driver's side of the SUV and walked to the rear. She touched the gate, then looked at Mr. Hope, who made a waving gesture indicating she could back up, and again put his car in reverse. Instead, the woman went back to the driver's door of the SUV, got back in, and after a "slight pause," she "quickly drove forward onto the tracks" 15 to 16 feet, at which point the train struck the SUV's passenger side and took the vehicle down the tracks (id. at 7-10).

Only Brody and Smalls opposed defendant's motion, and they have not submitted any evidence establishing there are disputed issues of material fact. Rather, the evidence they have provided further supports the court's conclusion that these facts are undisputed.

Brody submitted the following exhibits in support of his opposition to the motion to dismiss: Highway factors and Railroad Grade Crossing Group Chairman's Factual Report, and subsequent errata (Exhs. A and B). In opposition to summary judgment, he re-submitted these two exhibits (Exhs. A and B), and added an affidavit by engineer Wilfred L. Farnham (Exh. C), and a voluntary statement made to the MTA Police by non-party witness Domenick Gentile (Exh. D).

Smalls submitted the following exhibits in opposition to the motion to dismiss: response to defendant's demand for a bill of particulars (Kantor Aff., Exh. B); an unreadable copy of the accident report (Exh. C); NYSDOT Traffic Control Specifications (Exh. E); and an Affidavit of John A. Serth, Jr., P.E. ("Serth Aff.", Exh. F).

The NTSB factual reports corroborate that defendant does not own, maintain, repair or control the Commerce Street grade crossing, Commerce Street between the crossing and Lakeview Avenue, the train, the tracks, or the warning signals, signs and other devices. The statement of motorist Mr. Gentile to the police corroborates Mr. Hope's assertions that he attempted to get Mrs. Brody to back up, and his observations of Mrs. Brody's actions that night before she entered the crossing and up to the collision with the train. The Affidavit of Mr. Serth, an engineer, does support the allegation that the preemption system did not comply with regulations, which defendant does not dispute.

Claimants focus primarily on the preemption system, asserting that the signal timing and order caused traffic to back up on the tracks, and Mrs. Brody to be trapped on the tracks. This is speculation, and the assertion is made in the affidavit of engineer Wilfred L. Farnham, which is inadmissible because it was notarized in Missouri and not in New York, and it is not accompanied by the certificate of conformity required by CPLR 2309(c) (see Pra Ill, LLC v Gonzalez, 54 AD3d 917, 918 [2d Dept 2008] [evidence insufficient to support summary judgment where affidavits notarized outside New York and submitted without certificate or explanation for failure]). Other than the Farnham opinion, Brody and Smalls have submitted no evidence that preemption timing and sequencing caused Mrs. Brody to be trapped. Even if there were any such evidence, there is nothing to explain why she got out of the SUV, delayed while the train was obviously approaching, and then drove forward onto the tracks rather than in reverse as she was urged to do by Mr. Hope.

Defendant has made a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient admissible evidence to eliminate any material issues of fact. Defendant has established that it does not own or maintain, and has no responsibility for the safety of, Commerce Street from Lakeview Avenue to the Commerce Street grade crossing, the grade crossing itself, or the Metro-North train and tracks. Therefore, defendant did not owe motorists, like Mrs. Brody, a duty to ensure these areas would be reasonably safe, and defendant did not owe Mr. Smalls and the train passengers a duty to ensure the train and the tracks would be reasonably safe. Claimants cannot sustain a cause of action for negligence based on: the operation of the train; design and construction of the train track's third-rail system; placement and effectiveness of warning signs, roadway markings, or other devices along Commerce Street to alert a motorist that she was approaching a grade crossing; or design, construction and maintenance of the grade crossing (see Pasquaretto v Long Is. Univ., 106 AD3d 794 [2d Dept 2013] [stating the elements of negligence are the existence of a legal duty, breach of that duty, proximate causation, and damages]).

Defendant has also established that it is immune from liability stemming from the State Police shutting down southbound traffic on the Taconic at the Lakeview Avenue intersection due to an accident, which resulted in Mrs. Brody detouring to the Commerce Street grade crossing. In regulating traffic, the State Police were performing a governmental function for which the State is immune from liability (see Balsam v Delma Eng'g Corp., 90 NY2d 966, 968 [1997] [police failure to close roadway or divert traffic was immunized government function]; see also Lynch v State of New York, 37 AD3d 772, 773 [2d Dept 2007] [failure to block oncoming traffic with road flares after accident]).

It is well settled that the State "is not liable for the negligent performance of a governmental function unless there existed 'a special duty to the injured person, in contrast to a general duty owed to the public' " (Metz v State of New York, 20 NY3d 175, 179 [2012], quoting McLean v City of New York, 12 NY3d 194, 199 [2009]). Claimants have not alleged facts in the joined verified claims that the State Police, through a promise or actions, voluntarily assumed a duty to protect Mrs. Brody or any of the other deceased or injured claimants (see Lynch at 773; see also Eckert v State of New York, 3 AD3d 470, 470 [2d Dept 2004] [finding traffic regulation " 'is a classic example of a governmental function undertaken for the protection and safety of the public pursuant to the general police powers' " quoting Balsam at 968]).

Additionally, defendant has shown, with undisputed facts, that the State's exercise of oversight and inspection of railroad crossings in general, and the federal set-aside program in particular, fall within the category of immunized governmental functions (see Metz at 179 [finding State's inspections of steamboat is governmental function, and State did not owe special duty to individual passengers killed in accident on Lake George]; see also Miller v State of New York, 277 AD2d 770, 771 [3d Dept 2000]). The Miller case is directly on point. In that case, the state identified a crossing in need of a safety upgrade and contracted with the railroad to complete the project with the benefit of federal aid. The claimant's car collided with a train before the project was completed. In affirming the Court of Claims finding of no State liability, the Third department stated, "Despite claimant's attempt to suggest otherwise, the State was not acting in any proprietary capacity when it endeavored to upgrade the crossing. It did not own the railroad tracks themselves nor the road bed which they crossed [. . .]. Moreover, the State cannot be cast in liability for its decision to identify the site as requiring an upgrade or in the subsequent steps it took to contract with Delaware & Hudson to plan and implement the upgrade, these being purely governmental decisions in furtherance of the State's police powers" (Miller at 771; see Metz at 179). Additionally, defendant did not assume a duty to any particular special class of persons, particularly claimants, when it took preliminary steps to direct an upgrade at the Commerce Street grade crossing, or to require its closure (see Miller at 770-771). The court notes that claimants did not allege any facts suggesting otherwise.

With respect to the preemption system, defendant has established, with uncontroverted evidence, that it did not proximately cause the train collision (see Batista v City of New York, 101 AD3d 773, 776-777 [2d Dept 2012] [city workers closing off lane was not proximate cause of motorcycle rear-ending truck stopped because of closed lane]; see also Remy v City of New York, 36 AD3d 602, 603-604 [2d Dept 2007], app denied 8 NY3d 813 [2007] [defendant showed accident was proximately caused solely by plaintiff when he drove his truck from the center lane into the right lane despite his obstructed view]).

Brody and Smalls have alleged that: the preemption timing sequence did not comply with regulations requiring that train preemption take priority, and that the preemption condition be maintained until the crossing gates are energized to start their upward movement (Russotti Aff., 37). Defendant does not dispute that the preemption system did not comply with the guidelines. However, defendant does dispute the additional allegations that: the preemption system's lack of compliance contributed to a severe back up and congestion of traffic, which is "what allowed [Mrs. Brody's] vehicle to become stopped on the tracks in the first place, prior to the crossing gate striking her vehicle" (Russotti Aff., 37). Defendant argues there is no evidence that the preemption system timing sequence had a role in the accident, and has submitted admissible evidence to support that conclusion.

Brody alleges that according to a witness who was stopped "immediately behind" Mrs. Brody, "there was a line of stopped vehicles between the Brody vehicle and the traffic light at Commerce Street intersection with the Taconic" (Brody claim, 3). However, Richard Hope attests to different facts in his affidavit supporting defendant's motion for summary judgment. As set forth above, Mr. Hope attests that he could not see whether there were cars on the tracks in front of the SUV, and he did not believe the SUV was on the tracks, "maybe the front part just barely making it" (Masry Supp. Aff., Exh. A, 6). Mr. Hope also attests that after the warning lights started flashing and the warning gate came down hitting the rear of the SUV, its driver (Mrs. Brody) got out, walked to the rear and touched the gate, then walked back to the front, got in the SUV and drove forward onto the tracks for 15 to 16 feet only to be struck by the oncoming train. She made the decision to cross the tracks instead of abandoning her vehicle, or backing it up as Mr. Hope tried to get her to do by backing up his own car and motioning for her to follow suit. The fact that Mr. Hope backed up and waved to Mrs. Brody to back up is corroborated by the statement of Domenick Gentile to the MTA Police that Brody submitted in opposition to summary judgment (Cordella Aff., Exh. D).

Defendant reasons that the system must have performed as intended by clearing any traffic that may have been on the tracks, otherwise Mrs. Brody could not have driven forward across the tracks. There is no evidence to the contrary in this record. The court agrees that logically the tracks and Commerce Street east of the tracks must have been clear in order for Mrs. Brody to even attempt to pull forward. Because there is no evidence that the accident was proximately caused by the preemption system's signal timing and sequence, it is not necessary to determine whether the system worked as intended. Brody argues that if the preemption timing and sequence had complied with the guidelines, Mrs. Brody would not have stopped in the first place because cars in front of her would have cleared the tracks, and the gate would not have hit the rear of her SUV. This opinion is not only made in the inadmissible affidavit of engineer Wilfred L. Farnham, it is also not reasonably supported by the undisputed facts. Even construing the facts in claimants' favor and assuming the SUV stopped because a car was in front of it, this does not establish how far onto the tracks the SUV had driven when it stopped, how many cars were in front of the SUV, why they stopped, or when they cleared the tracks.

Defendant also argues that "it is debatable" whether its duty to maintain the Taconic and Commerce Street intersection in a reasonably safe condition "extended to require [it] to operate a train preemption system for cars [that] improperly stop on train tracks" (Masry Reply Aff., 16). The court sees the issue as whether Mrs. Brody's actions "so attenuated the defendant's alleged negligence as to be deemed a superseding cause necessarily relieving the defendants of liability" (Gao Yi Feng v Metro. Transp. Auth., 285 AD2d 447, 448 [2d Dept 2001] [plaintiff's standing near track facing away was superseding cause]). "It is well established that while a party remains liable for all normal and foreseeable consequences of his or her acts, an intervening act will constitute a superseding cause and will serve to relieve that party of liability when the act is of such an extraordinary nature or so attenuates that party's conduct from the ultimate injury that responsibility for the injury may not be reasonably attributed to that party" (Prysock v Metropolitan Transp. Auth., 251 AD2d 308, 309 [2d Dept 1998], app denied 92 NY2d 817 [1998]). There is no evidence that it would be reasonably foreseeable to the State that the circumstances leading up to the collision, particularly Mrs. Brody's delay in seeking safety then the unexplained decision to get back into her SUV and drive forward over the tracks regardless of the train warnings, would result from the noncompliance of the traffic signal preemption system with the timing and sequencing guidelines. Thus, the admissible evidence submitted by defendant shows that as to the State, Mrs. Brody's actions are such a superseding cause to the extent that the preemption system is implicated.

Finally, Brody argues that discovery is necessary to flesh out the facts. But he has not provided more than speculation that discovery would uncover any additional relevant information to dispute the facts established by defendant (see Mazzaferro v Barterama Corp., 218 AD2d 643 [2d Dept 1995]).

Accordingly, defendant's motion for summary judgment as to all claims joined under Claim No. 126012 is granted and Claim Nos. 126012, 126013, 126014, 126015, 126034, 126035, 126042, 126043, 126044, 126045, 126046, 126071, 126072, 126073, 126074, 127432, 127449, 127464, 127838, 127988, 128179, 128630, 129229, 129230, 129248 and 129249 are dismissed.

June 15, 2018

White Plains, New York

STEPHEN J. MIGNANO

Judge of the Court of Claims

Papers considered:

Notice of Motion, Affirmation in Support (Albert E. Masry, AAG) and Exhibits filed 8/1/17

Affirmation in Opposition (Philip Russotti, Esq.) and Exhibits filed 10/18/17

Affirmation in Opposition (Steven L. Kantor, Esq.) and Exhibits filed 10/18/17

Reply Affirmation (Albert E. Masry, AAG) and Exhibits filed 11/1/17

Affirmation in Support of Summary Judgment (Albert E. Masry, AAG) and Exhibits filed 2/26/18

Affirmation in Opposition (Paul Cordella, Esq.) And Exhibits filed 4/10/18

Reply Affirmation (Albert E. Masry, AAG) filed 4/13/18


1. Claim Nos. 126012, 126013, 126014, 126015, 126034, 126035, 126042, 126043, 126044, 126045, 126046, 126071, 126072, 126073, 126074, 127432, 127449, 127464, 127838, 127988, 128179, 128630, 129229, 129230, 129248 and 129249.

Many of the claimants have also started actions in New York State Supreme Court against Metro-North, the Metropolitan Transportation Authority ("MTA"), the Town of Mt. Pleasant, and the train engineer, Steven Smalls, Jr.

2. Mr. Russotti attests he is a member of the law firm of Wingate, Russotti, Shapiro & Halperin, LLP, which represents Brody.

3. Mr. Cordella attests he is an associate with Mr. Russotti's law firm.

4.

The earlier factual reports of NTSB investigators submitted by Brody and Smalls opposing the motion to dismiss may be used in a civil damages proceeding (49 C.F.R. 835.2).

5. The Railroad Administration, U.S. Department of Transportation crossing inventory form, dated 4/4/2013, identifies Metro-North as the owner of the Commerce Street grade crossing.

6. The court granted defendant's motion to dismiss a claim by one of the train passengers injured in the accident. The claim was filed against Metro-North and the MTA, over which the Court of Claims has no jurisdiction. The court stated that the claimant did not oppose the motion, and did not dispute that Metro-North is part of the MTA.

7.

The guidelines are quoted and discussed in the Serth Affidavit (Exh. F, Smalls opposition). They are also referred to in the NLRB Highway Factors and Railroad Grade Crossing Factual Report attached to the Brody opposition as Exh. B (see pgs. 13-16).