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Decedent Killed Sitting On Subway Tracks, A.D. Dismisses Case And Plaintiff's Expert

March 5, 2008

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In Mirjah v. New York City Transit Authority, plaintiff brought an action for wrongful death and personal injuries stemming from a July 15, 2000 accident whereupon plaintiff's decedent was struck and killed by a subway train. Directly before his death, the decedent was determined to be intoxicated and was observed sitting on the tracks, facing the oncoming train, that was coming around a curve in the rain. The trial court denied defendant's motion for summary judgment, apparently giving credence to the mathematical theory of Nicholas Bellizzi, plaintiff's expert, that the defendant's operator could have stopped the train without hitting the decedent.

The Appellate Division, Second Department reversed, finding Mr. Bellizzi's conclusions to be "merely speculative" and unable to raise a triable issue of fact.

<a href="http://www.nycourts.gov/reporter/3dseries/2008/2008_01722.htm">http://www.nycourts.gov/reporter/3dseries/2008/2008_01722.htm</a>

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