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FILED: WESTCHESTER COUNTY CLERK 01/18/2022 05:03 PM INDEX NO. 64924/2015
NYSCEF DOC. NO. 738 RECEIVED NYSCEF: 01/18/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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IN RE: METRO-NORTH TRAIN ACCIDENT OF Index No.: 64924/2015
OF FEBRUARY 3, 2015 IN THE TOWN OF MOUNT
PLEASANT, NEW YORK, PLAINTIFFS’ RESPONSE
TO DEFENDANT TOWN
OF MOUNT PLEASANT’S
STATEMENT OF
MATERIAL FACTS
PURSUANT TO UNIFORM
RULE 202.8-g(b)
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Pursuant to Section 202.8-g of the Uniform Rules , the Plaintiffs’ Steering Committee
submits the following response to the TOWN OF MOUNT PLEASANT’S Statement of Material
Facts:
1. The subject accident occurred on February 3, 2015 at approximately 6:26 p.m. at
the Commerce Street highway-rail grade crossing in the Town of Mount Pleasant, New York
between a Mercedes SUV operated by plaintiff-decedent Ellen Brody (“Brody”) and a
northbound Metro-North train. Exhibit “C”; Exhibit “K”, p. 4.
Plaintiffs do not dispute this statement.
2. Northbound Commerce Street runs parallel to the railroad tracks and the Taconic
State Parkway (“Taconic”) before turning towards the Taconic and intersecting with it following
the railroad tracks. Exhibit “G”; Exhibit “K”.
Plaintiffs do not dispute this statement to the extent that it refers to that portion of
Commerce Street south of the Commerce Street highway-railroad grade crossing.
3. Commerce Street was created in the late-1800s, existing since at least 1881, which
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was prior to the invention of gasoline-powered cars. Exhibit “H”.
Plaintiffs do not dispute this statement.
4. A predecessor to Metro-North purchased the property for the railroad at/or near
Commerce Street in 1847. Exhibit “H”.
Plaintiffs do not dispute this statement.
5. Commerce Street has existed in its current location since the early 1900s. Exhibit
“H”.
Plaintiffs do not dispute this statement.
6. On February 3, 2015, on the eastbound approach to the Commerce Street railroad
crossing there was a reflectorized Highway-Rail Grade Crossing Advance Warning sign (W10-1)
(a yellow circular sign with an X and RR on it) located approximately 160 feet from the nearest
rail, which was maintained by the Town. Exhibit “I”; Exhibit “K”, p. 6; Exhibit “L”, ¶ 12;
Exhibit “J”, p. 13, 55-56; Exhibit “Y”, p. 76-77.
Plaintiffs do not dispute this statement.
7. On February 3, 2015, on the eastbound approach to the Commerce Street railroad
crossing there was a retro reflectorized pavement marking, with its center about 252 feet from the
nearest rail, consisting of an X, the letters RR, and a no-passing zone located in the through lane
on the northwest approach to the crossing, which was maintained by the Town. Exhibit “I”;
Exhibit “K”, p. 6; Exhibit “L”, ¶ 13; Exhibit “J”, p. 11, 13-14, 57-58; Exhibit “Y”, p. 71.
Plaintiffs do not dispute this statement.
8. On February 3, 2015, on the eastbound approach to the Commerce Street railroad
crossing there was a “DO NOT STOP ON TRACKS” sign approximately 65 feet from the
nearest rail, which was installed by the Town in 2010 at the direction of the New York State
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Department of Transportation (“NYS DOT”) and is maintained by the Town. Exhibit “H”, ¶ 5;
Exhibit “J”,p. 23; Exhibit “L”, ¶ 17.
Plaintiffs do not dispute the existence and placement of the sign, but dispute that it
was installed at the direction of NYS DOT.
9. All the signage and pavement markings maintained by the Town are coated in
reflective material. Exhibit “L”, ¶ 12-13, 15; Exhibit “H”, ¶ 5; Exhibit “J”, p. 52-54, 56-57.
Plaintiffs dispute this statement. Photos taken by NTSB the day following the
accident show pavement markings were not reflective.
10. A stop line maintained by the Town was located on Commerce Street four feet
before the crossing gate and twenty-one feet from the closest railroad track. Exhibit “K”, p. 7, 11;
Exhibit “J”, p. 76-77.
Plaintiffs do not dispute this statement to the extent that it refers to the eastbound
approach to the crossing.
11. The Town is responsible for Commerce Street only up to the crossing gates.
Exhibit “J”, p. 77.
Plaintiffs do not dispute this statement.
12. Also present at the Commerce Street crossing on February 3, 2015, was a “Railroad
Crossing” crossbucks sign (R15-1) and a Number of Tracks plaque (R15-2P). Exhibit “K”, p. 7;
Exhibit “L”, ¶ 8.
Plaintiffs do not dispute this statement. However, on the eastbound approach, the
crossbuck was located only on the right-hand side of the road. Pursuant to MUTCD
§8B.03(06) a crossbuck was also required on the left-hand side of the road due to
restricted sight distance and unfavorable highway geometry on the approach to the
crossing. Metro-North’s failure to install a left-hand side crossbuck prior to the
accident was a violation of the MUTCD. Plaintiff’s Exhibit “4" (Nawn affidavit)
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13. The crossbuck sign was installed by Metro-North and Metro-North is responsible
for the track, the grade crossing pad area, the signal flashers and the gate arms. Exhibit “M”, p.
97-98, 212.
Plaintiffs do not dispute this statement.
14. The Town is not responsible for signage, including the crossbucks, located on the
actual physical crossing arms. Exhibit “J”, p. 12; Exhibit “Y”, p. 77-78.
Plaintiffs do not dispute this statement.
15. Metro-North maintains automatic gates, which automatically descend when a train
is approaching, at the entrance to the crossing on each side of the railroad tracks. Exhibit “M”, p.
73, 75; Exhibit “I”.
Plaintiffs do not dispute this statement.
16. The pole connected to the gate is marked with a “Railroad Crossing” crossbucks
sign atop two red lights which automatically begin to flash when a train is approaching. Exhibit
“M”, p. 211; Exhibit “K”, p. 10-11, 14; Exhibit “I”.
Plaintiffs do not dispute this statement.
17. After the flashers start, the gates lower. Exhibit “M”, p. 76.
Plaintiffs dispute this statement.
18. Each gate is adorned with red lights that flash to signal the arrival of an oncoming
train. Exhibit “K”, p. 10.
Plaintiffs do not dispute this statement.
19. The Town is not responsible for the maintenance of the gate arms or the flashing
lights at the crossing. Exhibit “J”, p. 12.
Plaintiffs do not dispute this statement.
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20. There is a Metro-North power substation southwest of the crossing. Exhibit “G”;
Exhibit “I”.
Plaintiffs do not dispute this statement.
21. The Town does not have any responsibility with respect to the substation building.
Exhibit “J”, p. 77; Exhibit “Y”, p. 85-86.
Plaintiffs do not dispute this statement.
22. A traffic light is positioned at the area where Commerce Street intersects with the
Taconic. Exhibit “K”, p. 11; Exhibit “Y” p. 69.
Plaintiffs do not dispute this statement
23. The traffic light includes a preemption system designed to clear traffic out of the
area between the railroad tracks and the Taconic in advance of the arrival of oncoming trains by
changing the traffic lights so that vehicles do not become trapped on the railroad tracks with
nowhere to go. Exhibit “K”; Exhibit “M”, p. 66-67.
The safety of the preemption system is not an issue on this motion, thus plaintiffs do
not dispute that there was a preemption system at the traffic light, but dispute that
the system operated properly to clear out traffic and prevent vehicles from
becoming trapped on the railroad tracks, which will be the subject of expert
disclosure following decision on that motion.
24. The preemption system is designed and maintained by the NYS DOT using train
data provided by Metro-North. Exhibit “M”, p. 65-66; Exhibit “N”, p. 14, 38, 42-43, 49.
Plaintiffs do not dispute this statement.
25. The Town does not have any maintenance responsibility with respect to the traffic
light or any responsibility with regards to the timing of the traffic signal. Exhibit “J”, p. 21;
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Exhibit “H”; Exhibit “Y”, p. 70.
Plaintiffs do not dispute this statement.
26. Metro-North conducted monthly, quarterly, and annual inspections of the
Commerce Street crossing warning equipment. Exhibit “K”, p. 17.
Plaintiffs do not dispute this statement.
27. The last monthly inspection conducted by Metro-North before the accident was
performed on January 29, 2015, and the last quarterly inspection before the accident was
performed on November 4, 2014. Exhibit “K”, p. 17.
Plaintiffs do not dispute this statement
28. On February 3, 2015, there was no shrubbery or foliage obstructing the view of
vehicles stopped at or near the stop line on the eastbound approach looking south towards an
approaching northbound train. See Exhibit “I”.
Plaintiffs do not dispute this statement.
29. The Town is only responsible for ensuring that the foliage around the signs at or
near the crossing is back far enough so that the signs are legible. See Exhibit “J”, p. 16-17.
Plaintiffs dispute this statement as this is a question of Law not proper to raise or
address in a statement of facts.
30. There was one prior collision between a vehicle and a train at the Commerce Street
crossing, which occurred in 1984, prior to the installation of automatic gates. Exhibit “O”;
Exhibit “P”, p. 60.
Plaintiffs do not dispute this statement
31. The 1984 accident occurred when a truck driver travelling at approximately 40
miles per hour failed to stop at the crossing, which resulted in the truck driver’s death. Exhibit
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“O”.
Plaintiffs dispute this statement as Exhibit “O” does not state that.
32. The only other incidences that have occurred at the Commerce Street railroad
crossing relate to disabled vehicles, malfunctioning or broken gate arms, and reports of
individuals at the crossing. Exhibit “Z”.
Plaintiffs dispute this statement as the source cited is inadmissible and hearsay.
Grade crossing incidents are attached to the Affidavit of John Nawn (Plaintiffs’
Exhibit “4")
33. The Town has not received prior written notice of a dangerous condition at or near
the Commerce crossing. Exhibit “W”; Exhibit “X”.
Plaintiffs dispute this statement. In any event, prior written notice is not a
prerequisite to plaintiffs’ claims against the Town.
34. On February 3, 2015, prior to the subject train versus motor vehicle accident, there
was a motor vehicle accident on the Taconic State Parkway at its intersection with Lakeview
Avenue. See Exhibit “Q”; Exhibit “R”, p. 19.
Plaintiffs do not dispute that there was a motor vehicle accident on the Taconic
State Parkway prior to the subject train versus motor vehicle accident but disputes
that the accident was “at its intersection with Lakeview Avenue” it was “near” the
intersection of Lakeview. Town Exhibit Q, paragraph 4.
35. As a result of the motor vehicle accident on the Taconic at its intersection with
Lakeview Avenue, traffic from the Taconic was diverted onto Lakeview Avenue from where
drivers had the option to continue westbound on Lakeview, turn left onto southbound Commerce,
or turn right onto northbound Commerce. Exhibit “Q”.
Plaintiffs do not dispute this statement.
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36. Law enforcement personnel, including Town of Mount Pleasant personnel, were
directing vehicles onto Lakeview Avenue, but not onto Commerce Street or in any particular
direction from Lakeview Avenue. Exhibit “R”, p. 18-19; Exhibit “S”, p. 28-29.
Plaintiffs do not dispute this statement.
37. Non-party witness Richard Hope was driving directly behind Brody’s SUV on
Commerce Street, and non-party witness Domenick Gentile was driving behind Mr. Hope.
Exhibit“T”, ¶ 4; Exhibit “S”, p. 77.
Plaintiffs do not dispute this statement.
38. Traffic on Commerce was “stop and go”. Exhibit “R”, p. 31.
Plaintiffs do not dispute this statement.
39. Brody brought her vehicle to a stop inside of the railroad gates. Exhibit “S”, p. 59.
Plaintiffs do not dispute that when Brody brought her vehicle to a stop, a portion of
her vehicle was inside of the railroad gates. However, it is disputed that Brody was
aware that she was at or near a railroad crossing when she brought her vehicle to a
stop. Hope EBT, Town Exhibit R.
40. Mr. Hope brought his vehicle to a stop behind Brody’s SUV. Exhibit “T”, ¶ 5.
Plaintiffs do not dispute this statement.
41. Ms. Gentile brought his vehicle to a stop approximately thirty feet behind Mr.
Hope’s vehicle. Exhibit “S”, p. 41.
Plaintiffs do not dispute this statement.
42. One or two seconds after Mr. Hope brought his vehicle to a stop behind Brody’s
SUV, the red lights at the crossing began flashing. Exhibit “T”, ¶ 5; Exhibit “S”, p. 42, 82.
Plaintiffs do not dispute that Hope said this in his affidavit, but dispute the accuracy
of the statement and dispute that Gentile testified to those facts (same Exhibits)
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43. Thereafter, the arm of the crossing gate descended and struck the rear of Brody’s
SUV. Exhibit “T”, ¶ 5; Exhibit “S”, p. 41-42.
Plaintiffs do not dispute this statement.
44. Mr. Hope then reversed his vehicle so that Brody had room to back her SUV away
from the crossing. Exhibit “T”, ¶ 7; Exhibit “S”, p. 41-42, 91.
Plaintiffs dispute this statement as Hope only said that he backed up to make room
for Brody to back up, not that there was room for her to back up. (Exhibit “T”)
45. After Mr. Hope reversed his vehicle, Brody exited her vehicle, walked to its rear,
and touched the arm of the crossing gate. Exhibit “S”, p. 46-47; Exhibit “T”, ¶ 8.
Plaintiffs do not dispute this statement.
46. Mr. Hope again backed his vehicle up and motioned with a wave gesture for Brody
to back up. Exhibit “T”, ¶ 9; Exhibit “S”, p. 43-45, 91-92.
Plaintiffs do not dispute that Hope’s affidavit states this, but dispute that Brody saw
such a gesture.
47. After inspecting the gate, Brody then casually walked back towards the driver’s
side door of her vehicle and re-entered it. Exhibit “S”, p. 49-50.
Plaintiffs dispute this statement as to the characterization of “casually.” Exhibit T
p10.
48. Approximately five seconds after Brody re-entered her SUV, she proceeded
quickly forward onto the railroad tracks at which time her SUV was struck by the oncoming
Metro-North train and pushed down the railroad tracks. Exhibit “S”, p. 52; Exhibit “T”, ¶ 10.
Plaintiffs dispute this statement as the testimony was “a couple of seconds…maybe
5”. Exhibit S p. 51.
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49. From the time Brody re-entered her vehicle to the time in which she proceeded
forward, enough time passed that Brody would have been able to put her seatbelt on. Exhibit
“R”p. 62.
Plaintiffs dispute this statement. This is a statement of opinion, rather than a
statement of fact
50. Brody’s SUV was pushed down the tracks and impacted the third rail causing the
third rail to penetrate the SUV and the Metro-North train car. Exhibit “M”, p. 102-103.
Plaintiffs do not dispute this statement.
51. Both the gate crossing and the train were equipped with event recorders that were
operative during the accident. Exhibit “K”, p. 11-12; Exhibit “U”, p. 2.
Plaintiffs do not dispute this statement.
52. The recorder at the crossing indicated that there was 39 seconds of warning time
before the train reached the crossing at 6:26:16 p.m. and that the lights on the crossing were
operating at 45 flashes per minute during this time. Exhibit “K”, p. 12.
Plaintiffs do not dispute that the NTSB report says this, but dispute the accuracy of
those statements.
53. The gate arms descended four seconds after the flashing lights were activated.
Exhibit “K”, p. 17.
Plaintiffs do not dispute this statement to the extent that it refers to post-crash
testing of the warning system.
54. Post-crash testing revealed that the gate arms were in full horizontal position 13
seconds after the flashing light units were activated. Exhibit “K”, p. 17.
Plaintiffs do not dispute this statement.
55. The event recorder on the train indicated that the horn was sounded three times
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before the collision at 6:25:56 pm; 6:26:02 and 6:26:07. Exhibit “U”.
Plaintiffs dispute this statement. See ERD contained as an exhibit to the affidavit of
Ed Fritsch submitted in opposition to motion by Metro-North.
56. On June 15, 2018, the Honorable Stephen J. Mignano in granting the State of New
York’s motion for summary judgment in Railroad v. The State of New York, 2018-029-058,
Claim No. 126012, Motion No. M-90878 held that Brody’s actions were a superseding cause of
the accident. Exhibit “V”, p. 6.
Plaintiffs dispute this statement. Judge Mignano held that Brody’s actions were a
superseding cause of the accident only as to the State of New York to the extent that
the preemption system is implicated. Judge Mignano did not make any such ruling
with respect to plaintiffs’ claims against the Town of Mount Pleasant or Metro-
North. Plaintiffs dispute that Brody’s actions were a superceding cause of the
accident.
57. Following the subject accident, at the recommendation of the NTSB, the MTA
hired a third-party to conduct a risk assessment of the third rail system in areas where there are
crossings, which revealed that there has been no accident of this nature in the world” Exhibit
“M”, p. 168, 170-171.
Plaintiffs do not dispute that the MTA hired a third-party to conduct a risk
assessment but dispute the third-party’s conclusions, including the conclusion that
there has been no accident of this nature in the world.
58. An international study was performed, which involved a survey of other rail
properties, and it was found that there’s never been an accident where a third rail has penetrated a
train car. Exhibit “M”, p.168, 170-171.
Plaintiffs dispute this statement as Kirsch’s testimony is inadmissible hearsay.
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PLAINTIFFS’ STATEMENT OF FACTS WHERE THERE IS A GENUINE ISSUE TO
BE TRIED
1. Brody was not aware that she was at/near a railroad grade crossing when she brought her
vehicle to a stop at the crossing. Town Exhibit “R” (Hope EBT—he was not aware that he was
at/near the crossing); Plaintiffs’ Exhibit “4” (Nawn affidavit)
2. Brody did not violate VTL Section 1176. Town Exhibit “R”, pages 43-44, 144 (Hope EBT
testimony that the Brody vehicle was not on the tracks); Plaintiffs’ Exhibit “5”, NTSB report,
page 6 (Hope statement that the front of the SUV was very close to– but not on– the railroad
track)
Dated: January 18, 2022
New York, New York
____________________________________
Jason M. Rubin
On behalf of Plaintiffs’ Steering Committee
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FILED: WESTCHESTER COUNTY CLERK 01/18/2022 05:03 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 738 RECEIVED NYSCEF: 01/18/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ---------------------------------------------------------------------X IN RE: METRO-NORTH TRAIN ACCIDENT OF Index No.: 64924/2015 OF FEBRUARY 3, 2015 IN THE TOWN OF MOUNT PLEASANT, NEW YORK, PLAINTIFFS’ RESPONSE TO DEFENDANT TOWN OF MOUNT PLEASANT’S STATEMENT OF MATERIAL FACTS PURSUANT TO UNIFORM RULE 202.8-g(b) ---------------------------------------------------------------------X Pursuant to Section 202.8-g of the Uniform Rules , the Plaintiffs’ Steering Committee submits the following response to the TOWN OF MOUNT PLEASANT’S Statement of Material Facts: 1. The subject accident occurred on February 3, 2015 at approximately 6:26 p.m. at the Commerce Street highway-rail grade crossing in the Town of Mount Pleasant, New York between a Mercedes SUV operated by plaintiff-decedent Ellen Brody (“Brody”) and a northbound Metro-North train. Exhibit “C”; Exhibit “K”, p. 4. Plaintiffs do not dispute this statement. 2. Northbound Commerce Street runs parallel to the railroad tracks and the Taconic State Parkway (“Taconic”) before turning towards the Taconic and intersecting with it following the railroad tracks. Exhibit “G”; Exhibit “K”. Plaintiffs do not dispute this statement to the extent that it refers to that portion of Commerce Street south of the Commerce Street highway-railroad grade crossing. 3. Commerce Street was created in the late-1800s, existing since at least 1881, which 1 1 of 12 FILED: WESTCHESTER COUNTY CLERK 01/18/2022 05:03 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 738 RECEIVED NYSCEF: 01/18/2022 was prior to the invention of gasoline-powered cars. Exhibit “H”. Plaintiffs do not dispute this statement. 4. A predecessor to Metro-North purchased the property for the railroad at/or near Commerce Street in 1847. Exhibit “H”. Plaintiffs do not dispute this statement. 5. Commerce Street has existed in its current location since the early 1900s. Exhibit “H”. Plaintiffs do not dispute this statement. 6. On February 3, 2015, on the eastbound approach to the Commerce Street railroad crossing there was a reflectorized Highway-Rail Grade Crossing Advance Warning sign (W10-1) (a yellow circular sign with an X and RR on it) located approximately 160 feet from the nearest rail, which was maintained by the Town. Exhibit “I”; Exhibit “K”, p. 6; Exhibit “L”, ¶ 12; Exhibit “J”, p. 13, 55-56; Exhibit “Y”, p. 76-77. Plaintiffs do not dispute this statement. 7. On February 3, 2015, on the eastbound approach to the Commerce Street railroad crossing there was a retro reflectorized pavement marking, with its center about 252 feet from the nearest rail, consisting of an X, the letters RR, and a no-passing zone located in the through lane on the northwest approach to the crossing, which was maintained by the Town. Exhibit “I”; Exhibit “K”, p. 6; Exhibit “L”, ¶ 13; Exhibit “J”, p. 11, 13-14, 57-58; Exhibit “Y”, p. 71. Plaintiffs do not dispute this statement. 8. On February 3, 2015, on the eastbound approach to the Commerce Street railroad crossing there was a “DO NOT STOP ON TRACKS” sign approximately 65 feet from the nearest rail, which was installed by the Town in 2010 at the direction of the New York State 2 of 12 FILED: WESTCHESTER COUNTY CLERK 01/18/2022 05:03 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 738 RECEIVED NYSCEF: 01/18/2022 Department of Transportation (“NYS DOT”) and is maintained by the Town. Exhibit “H”, ¶ 5; Exhibit “J”,p. 23; Exhibit “L”, ¶ 17. Plaintiffs do not dispute the existence and placement of the sign, but dispute that it was installed at the direction of NYS DOT. 9. All the signage and pavement markings maintained by the Town are coated in reflective material. Exhibit “L”, ¶ 12-13, 15; Exhibit “H”, ¶ 5; Exhibit “J”, p. 52-54, 56-57. Plaintiffs dispute this statement. Photos taken by NTSB the day following the accident show pavement markings were not reflective. 10. A stop line maintained by the Town was located on Commerce Street four feet before the crossing gate and twenty-one feet from the closest railroad track. Exhibit “K”, p. 7, 11; Exhibit “J”, p. 76-77. Plaintiffs do not dispute this statement to the extent that it refers to the eastbound approach to the crossing. 11. The Town is responsible for Commerce Street only up to the crossing gates. Exhibit “J”, p. 77. Plaintiffs do not dispute this statement. 12. Also present at the Commerce Street crossing on February 3, 2015, was a “Railroad Crossing” crossbucks sign (R15-1) and a Number of Tracks plaque (R15-2P). Exhibit “K”, p. 7; Exhibit “L”, ¶ 8. Plaintiffs do not dispute this statement. However, on the eastbound approach, the crossbuck was located only on the right-hand side of the road. Pursuant to MUTCD §8B.03(06) a crossbuck was also required on the left-hand side of the road due to restricted sight distance and unfavorable highway geometry on the approach to the crossing. Metro-North’s failure to install a left-hand side crossbuck prior to the accident was a violation of the MUTCD. Plaintiff’s Exhibit “4" (Nawn affidavit) 3 3 of 12 FILED: WESTCHESTER COUNTY CLERK 01/18/2022 05:03 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 738 RECEIVED NYSCEF: 01/18/2022 13. The crossbuck sign was installed by Metro-North and Metro-North is responsible for the track, the grade crossing pad area, the signal flashers and the gate arms. Exhibit “M”, p. 97-98, 212. Plaintiffs do not dispute this statement. 14. The Town is not responsible for signage, including the crossbucks, located on the actual physical crossing arms. Exhibit “J”, p. 12; Exhibit “Y”, p. 77-78. Plaintiffs do not dispute this statement. 15. Metro-North maintains automatic gates, which automatically descend when a train is approaching, at the entrance to the crossing on each side of the railroad tracks. Exhibit “M”, p. 73, 75; Exhibit “I”. Plaintiffs do not dispute this statement. 16. The pole connected to the gate is marked with a “Railroad Crossing” crossbucks sign atop two red lights which automatically begin to flash when a train is approaching. Exhibit “M”, p. 211; Exhibit “K”, p. 10-11, 14; Exhibit “I”. Plaintiffs do not dispute this statement. 17. After the flashers start, the gates lower. Exhibit “M”, p. 76. Plaintiffs dispute this statement. 18. Each gate is adorned with red lights that flash to signal the arrival of an oncoming train. Exhibit “K”, p. 10. Plaintiffs do not dispute this statement. 19. The Town is not responsible for the maintenance of the gate arms or the flashing lights at the crossing. Exhibit “J”, p. 12. Plaintiffs do not dispute this statement. 4 of 12 FILED: WESTCHESTER COUNTY CLERK 01/18/2022 05:03 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 738 RECEIVED NYSCEF: 01/18/2022 20. There is a Metro-North power substation southwest of the crossing. Exhibit “G”; Exhibit “I”. Plaintiffs do not dispute this statement. 21. The Town does not have any responsibility with respect to the substation building. Exhibit “J”, p. 77; Exhibit “Y”, p. 85-86. Plaintiffs do not dispute this statement. 22. A traffic light is positioned at the area where Commerce Street intersects with the Taconic. Exhibit “K”, p. 11; Exhibit “Y” p. 69. Plaintiffs do not dispute this statement 23. The traffic light includes a preemption system designed to clear traffic out of the area between the railroad tracks and the Taconic in advance of the arrival of oncoming trains by changing the traffic lights so that vehicles do not become trapped on the railroad tracks with nowhere to go. Exhibit “K”; Exhibit “M”, p. 66-67. The safety of the preemption system is not an issue on this motion, thus plaintiffs do not dispute that there was a preemption system at the traffic light, but dispute that the system operated properly to clear out traffic and prevent vehicles from becoming trapped on the railroad tracks, which will be the subject of expert disclosure following decision on that motion. 24. The preemption system is designed and maintained by the NYS DOT using train data provided by Metro-North. Exhibit “M”, p. 65-66; Exhibit “N”, p. 14, 38, 42-43, 49. Plaintiffs do not dispute this statement. 25. The Town does not have any maintenance responsibility with respect to the traffic light or any responsibility with regards to the timing of the traffic signal. Exhibit “J”, p. 21; 5 5 of 12 FILED: WESTCHESTER COUNTY CLERK 01/18/2022 05:03 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 738 RECEIVED NYSCEF: 01/18/2022 Exhibit “H”; Exhibit “Y”, p. 70. Plaintiffs do not dispute this statement. 26. Metro-North conducted monthly, quarterly, and annual inspections of the Commerce Street crossing warning equipment. Exhibit “K”, p. 17. Plaintiffs do not dispute this statement. 27. The last monthly inspection conducted by Metro-North before the accident was performed on January 29, 2015, and the last quarterly inspection before the accident was performed on November 4, 2014. Exhibit “K”, p. 17. Plaintiffs do not dispute this statement 28. On February 3, 2015, there was no shrubbery or foliage obstructing the view of vehicles stopped at or near the stop line on the eastbound approach looking south towards an approaching northbound train. See Exhibit “I”. Plaintiffs do not dispute this statement. 29. The Town is only responsible for ensuring that the foliage around the signs at or near the crossing is back far enough so that the signs are legible. See Exhibit “J”, p. 16-17. Plaintiffs dispute this statement as this is a question of Law not proper to raise or address in a statement of facts. 30. There was one prior collision between a vehicle and a train at the Commerce Street crossing, which occurred in 1984, prior to the installation of automatic gates. Exhibit “O”; Exhibit “P”, p. 60. Plaintiffs do not dispute this statement 31. The 1984 accident occurred when a truck driver travelling at approximately 40 miles per hour failed to stop at the crossing, which resulted in the truck driver’s death. Exhibit 6 of 12 FILED: WESTCHESTER COUNTY CLERK 01/18/2022 05:03 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 738 RECEIVED NYSCEF: 01/18/2022 “O”. Plaintiffs dispute this statement as Exhibit “O” does not state that. 32. The only other incidences that have occurred at the Commerce Street railroad crossing relate to disabled vehicles, malfunctioning or broken gate arms, and reports of individuals at the crossing. Exhibit “Z”. Plaintiffs dispute this statement as the source cited is inadmissible and hearsay. Grade crossing incidents are attached to the Affidavit of John Nawn (Plaintiffs’ Exhibit “4") 33. The Town has not received prior written notice of a dangerous condition at or near the Commerce crossing. Exhibit “W”; Exhibit “X”. Plaintiffs dispute this statement. In any event, prior written notice is not a prerequisite to plaintiffs’ claims against the Town. 34. On February 3, 2015, prior to the subject train versus motor vehicle accident, there was a motor vehicle accident on the Taconic State Parkway at its intersection with Lakeview Avenue. See Exhibit “Q”; Exhibit “R”, p. 19. Plaintiffs do not dispute that there was a motor vehicle accident on the Taconic State Parkway prior to the subject train versus motor vehicle accident but disputes that the accident was “at its intersection with Lakeview Avenue” it was “near” the intersection of Lakeview. Town Exhibit Q, paragraph 4. 35. As a result of the motor vehicle accident on the Taconic at its intersection with Lakeview Avenue, traffic from the Taconic was diverted onto Lakeview Avenue from where drivers had the option to continue westbound on Lakeview, turn left onto southbound Commerce, or turn right onto northbound Commerce. Exhibit “Q”. Plaintiffs do not dispute this statement. 7 7 of 12 FILED: WESTCHESTER COUNTY CLERK 01/18/2022 05:03 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 738 RECEIVED NYSCEF: 01/18/2022 36. Law enforcement personnel, including Town of Mount Pleasant personnel, were directing vehicles onto Lakeview Avenue, but not onto Commerce Street or in any particular direction from Lakeview Avenue. Exhibit “R”, p. 18-19; Exhibit “S”, p. 28-29. Plaintiffs do not dispute this statement. 37. Non-party witness Richard Hope was driving directly behind Brody’s SUV on Commerce Street, and non-party witness Domenick Gentile was driving behind Mr. Hope. Exhibit“T”, ¶ 4; Exhibit “S”, p. 77. Plaintiffs do not dispute this statement. 38. Traffic on Commerce was “stop and go”. Exhibit “R”, p. 31. Plaintiffs do not dispute this statement. 39. Brody brought her vehicle to a stop inside of the railroad gates. Exhibit “S”, p. 59. Plaintiffs do not dispute that when Brody brought her vehicle to a stop, a portion of her vehicle was inside of the railroad gates. However, it is disputed that Brody was aware that she was at or near a railroad crossing when she brought her vehicle to a stop. Hope EBT, Town Exhibit R. 40. Mr. Hope brought his vehicle to a stop behind Brody’s SUV. Exhibit “T”, ¶ 5. Plaintiffs do not dispute this statement. 41. Ms. Gentile brought his vehicle to a stop approximately thirty feet behind Mr. Hope’s vehicle. Exhibit “S”, p. 41. Plaintiffs do not dispute this statement. 42. One or two seconds after Mr. Hope brought his vehicle to a stop behind Brody’s SUV, the red lights at the crossing began flashing. Exhibit “T”, ¶ 5; Exhibit “S”, p. 42, 82. Plaintiffs do not dispute that Hope said this in his affidavit, but dispute the accuracy of the statement and dispute that Gentile testified to those facts (same Exhibits) 8 of 12 FILED: WESTCHESTER COUNTY CLERK 01/18/2022 05:03 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 738 RECEIVED NYSCEF: 01/18/2022 43. Thereafter, the arm of the crossing gate descended and struck the rear of Brody’s SUV. Exhibit “T”, ¶ 5; Exhibit “S”, p. 41-42. Plaintiffs do not dispute this statement. 44. Mr. Hope then reversed his vehicle so that Brody had room to back her SUV away from the crossing. Exhibit “T”, ¶ 7; Exhibit “S”, p. 41-42, 91. Plaintiffs dispute this statement as Hope only said that he backed up to make room for Brody to back up, not that there was room for her to back up. (Exhibit “T”) 45. After Mr. Hope reversed his vehicle, Brody exited her vehicle, walked to its rear, and touched the arm of the crossing gate. Exhibit “S”, p. 46-47; Exhibit “T”, ¶ 8. Plaintiffs do not dispute this statement. 46. Mr. Hope again backed his vehicle up and motioned with a wave gesture for Brody to back up. Exhibit “T”, ¶ 9; Exhibit “S”, p. 43-45, 91-92. Plaintiffs do not dispute that Hope’s affidavit states this, but dispute that Brody saw such a gesture. 47. After inspecting the gate, Brody then casually walked back towards the driver’s side door of her vehicle and re-entered it. Exhibit “S”, p. 49-50. Plaintiffs dispute this statement as to the characterization of “casually.” Exhibit T p10. 48. Approximately five seconds after Brody re-entered her SUV, she proceeded quickly forward onto the railroad tracks at which time her SUV was struck by the oncoming Metro-North train and pushed down the railroad tracks. Exhibit “S”, p. 52; Exhibit “T”, ¶ 10. Plaintiffs dispute this statement as the testimony was “a couple of seconds…maybe 5”. Exhibit S p. 51. 9 9 of 12 FILED: WESTCHESTER COUNTY CLERK 01/18/2022 05:03 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 738 RECEIVED NYSCEF: 01/18/2022 49. From the time Brody re-entered her vehicle to the time in which she proceeded forward, enough time passed that Brody would have been able to put her seatbelt on. Exhibit “R”p. 62. Plaintiffs dispute this statement. This is a statement of opinion, rather than a statement of fact 50. Brody’s SUV was pushed down the tracks and impacted the third rail causing the third rail to penetrate the SUV and the Metro-North train car. Exhibit “M”, p. 102-103. Plaintiffs do not dispute this statement. 51. Both the gate crossing and the train were equipped with event recorders that were operative during the accident. Exhibit “K”, p. 11-12; Exhibit “U”, p. 2. Plaintiffs do not dispute this statement. 52. The recorder at the crossing indicated that there was 39 seconds of warning time before the train reached the crossing at 6:26:16 p.m. and that the lights on the crossing were operating at 45 flashes per minute during this time. Exhibit “K”, p. 12. Plaintiffs do not dispute that the NTSB report says this, but dispute the accuracy of those statements. 53. The gate arms descended four seconds after the flashing lights were activated. Exhibit “K”, p. 17. Plaintiffs do not dispute this statement to the extent that it refers to post-crash testing of the warning system. 54. Post-crash testing revealed that the gate arms were in full horizontal position 13 seconds after the flashing light units were activated. Exhibit “K”, p. 17. Plaintiffs do not dispute this statement. 55. The event recorder on the train indicated that the horn was sounded three times 10 of 12 FILED: WESTCHESTER COUNTY CLERK 01/18/2022 05:03 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 738 RECEIVED NYSCEF: 01/18/2022 before the collision at 6:25:56 pm; 6:26:02 and 6:26:07. Exhibit “U”. Plaintiffs dispute this statement. See ERD contained as an exhibit to the affidavit of Ed Fritsch submitted in opposition to motion by Metro-North. 56. On June 15, 2018, the Honorable Stephen J. Mignano in granting the State of New York’s motion for summary judgment in Railroad v. The State of New York, 2018-029-058, Claim No. 126012, Motion No. M-90878 held that Brody’s actions were a superseding cause of the accident. Exhibit “V”, p. 6. Plaintiffs dispute this statement. Judge Mignano held that Brody’s actions were a superseding cause of the accident only as to the State of New York to the extent that the preemption system is implicated. Judge Mignano did not make any such ruling with respect to plaintiffs’ claims against the Town of Mount Pleasant or Metro- North. Plaintiffs dispute that Brody’s actions were a superceding cause of the accident. 57. Following the subject accident, at the recommendation of the NTSB, the MTA hired a third-party to conduct a risk assessment of the third rail system in areas where there are crossings, which revealed that there has been no accident of this nature in the world” Exhibit “M”, p. 168, 170-171. Plaintiffs do not dispute that the MTA hired a third-party to conduct a risk assessment but dispute the third-party’s conclusions, including the conclusion that there has been no accident of this nature in the world. 58. An international study was performed, which involved a survey of other rail properties, and it was found that there’s never been an accident where a third rail has penetrated a train car. Exhibit “M”, p.168, 170-171. Plaintiffs dispute this statement as Kirsch’s testimony is inadmissible hearsay. 11 11 of 12 FILED: WESTCHESTER COUNTY CLERK 01/18/2022 05:03 PM INDEX NO. 64924/2015 NYSCEF DOC. NO. 738 RECEIVED NYSCEF: 01/18/2022 PLAINTIFFS’ STATEMENT OF FACTS WHERE THERE IS A GENUINE ISSUE TO BE TRIED 1. Brody was not aware that she was at/near a railroad grade crossing when she brought her vehicle to a stop at the crossing. Town Exhibit “R” (Hope EBT—he was not aware that he was at/near the crossing); Plaintiffs’ Exhibit “4” (Nawn affidavit) 2. Brody did not violate VTL Section 1176. Town Exhibit “R”, pages 43-44, 144 (Hope EBT testimony that the Brody vehicle was not on the tracks); Plaintiffs’ Exhibit “5”, NTSB report, page 6 (Hope statement that the front of the SUV was very close to– but not on– the railroad track) Dated: January 18, 2022 New York, New York ____________________________________ Jason M. Rubin On behalf of Plaintiffs’ Steering Committee 12 of 12