STATE OF NEW ORK COURT OF my; ALAN BRODY, as Administrator of the Estate. of ELLEN BRODY afkfa ELLEN GAIL BRODY, and ALAN BRODY, individually CLAil?vi Claimant, ~against=~ 'li'liE S'l?r?i'lli OF YORK, Respondent. TO: Attorney General of the State of?New York, 120 Broadway, 24?? FL, New York, NY 10271 Claimant, BRODY, individually and, as Administrator of the lfistate of ELLEN BRODY a/k/a ELLEN GAIL SCHAEFFER BRODY, by his attorneys, WINGATE, HALPERIN, alleges the following upon information and belief: l. The post office address of Claimant BRODY is 9i Highland Road, Scarsdale, NY, l0583. 2. This is a claim for Personal injuries, pain and suffering sustained by ELLEN BRODY, deceased, and Wrongful Death on behalt?of the ALAN BRODY and the distributees of the Estate of ELLEN BRODY, and all other damages allowed by statute and case law as a result of" the negligence of the STATE OF NEW YORK, its respective agents, servants, licensees, contractors, subcontractors, employees and other af?liates, agencies and departments in its ownership, construction, operation, design, maintenance, control and management of the Commerce Street highway?rail grade crossing located on the lelarlern Line of the Metro North Commuter Railroad in the hamlet of Valhalla, Town of Mount Pleasant, County ol?Westchester, State oi?NeW York .5, DOT Grade Crossing ID No. including but not limited to, negligence in the ownership, construction, operation, design, maintenance, control and management of the roadway, signals, tracks, signage, lighting, barriers, gates, warning devices, warning lights, audible warning systems, preemption devices, power substations, signal house, appurtenances, vegetation at and around said crossing in that the crossing had multiple hazards and failed to meet minimum safe construction standards and minimum standards of the Federal Highway Administration?s Manual on Uniform F'lirat?lic Control Devices and Railroadwllighway Grade Crossing Handbook and, generally accepted standards for safe railroad crosaings. The hazards and defects in the crossing include, but are not limited to: A hazardous and defective preemption system which failed to provide first priority to train activation and failed to allow sufficient time for vehicular traffic to clean in ViOlEtilOl?! oi" the The railroad crossing configuration creates multiple safety concerns including but not limited to the fact that: Commerce Street crosses the railroad tracks at a hazardous skew/angle of l70 which limits the motorist?s ?eld ofview and line of sight to see an oncoming train from the south especially on the westernmost track; limits a motoriet?s ability to hear the trains audible warning system coming from the south because of the topography which renders the audible warning system ineffective in the northbound direction; a building structure located in the southeast quadrant of the intersection further interferes with a train?s audible warning system emanating from northbound trains, and blocks a motorist?s line of sight of the northbound tracks of an approaching train? and has a bright light facing a motorist trying to look. South, or rating a glare interfering with the motorist?s Vision; vegetation blocks a motorist?s line ofsight of the tracks and an approaching train, and; the elevated railway design tie. hump) of the crossing, especially together with a depressed roadway immediately preceding the crossings presents a hazard, including limits on the ability of a motorist to see traffic conditions beyond the crossing which can cause difficulty in making decisions on how to proceed. to) The ambient lighting at and near the crossing was inadequate and did not meet ininiznuim national standards, preventing a motorist from seeing the crossing or signs at or near the crossing There is a short queue between the railroad tracks and the traf?c signal beyond the crossing at the intersection of Commerce Street and the laconic State Parkway. This creates a hazard and increases the likelihood that a car can get trapped on the tracks due to stopped traffic. There was no escape area for a vehicle to move to away from the crossing in the event that a motorist became trapped between another vehicle and the gate. Because of the safety hazards: and defects set forth above at the subject hi ghwaysrail 333 the crossing? low utility grade crossing conpiej witi- the heavy train yoinme due to the normally low level of vehicular traffic on Commerce Street and availability of two nearby safe crossings at est Stevens Street and at Lakeyiew Avenue (2044 feet away) and because ofthc considerations set forth in the Railroad Highway Grade Crossing Handbook recommending closure ofrednndant crossings? the hazardous Commerce Street crossing was redundant and unnecessary, Thus the STATE OF NEW YORK was negligent in failing to petition the Commissioner of the New York State Department ot?l?"?ransportation to close and eliminate this grade crossing, pursuant to Section 222 of the New York ?l?ransportation Law, which should have resulted in its closing, because of all of the above and because the cost to close the crossing would have been nominal without the necessity of constructing an alternative route. In the absence ot?closure of the crossing, the following remedial actions were required to make the crossing sa especially in light oi?a prior auto/train accident in 1984 at this crossing, and the failure to do so constitutes negligence on the part ofthe STATE OF NEW YORK: (A) The Respondent, STATE OF NEW was negligent in failing to implement and follow through on plans proposed by the New York State Department of Transportation in 2009 which allocated funds to perform the planned upgrade of safety at crossing by installation of additional warning lights/signs and the failure of Respondent to follow?up to have lights/ signs installed pursuant to that plan for over 5 years. (B) The quantity, quality? placement and content of the signage and warning signal light near the crossing did not provide suf?cient, adequate or safe advance warning to motorists of the presence of the crossing, approaching train traf?c or the hazards presented for reasons set forth above, together with ineffective reflectivity of existing signage. Because Commerce Street curves to the right shortly before the crossing, additional signage? warning signals and lights were required on the left side of Commerce Street (the north side as it approaches the railroad crossing) to ensure that. the signs and warning signals/lights were in the line of sight of motorists. Supplemental flashing light signals were required on the left side of Commerce Street, as described abovci and as illustrated in figure 28 of the Railroad Highway Grade Crossing Handbook Rev: 2nd Ed Augi st (C) A supplemental reflector crossbuck sign with the above described lights should have been installed on the left hand side of Commerce Street because of restricted sight distance and unfavorable highway geometry approaching the grade crossing as required by Section 83.03 (06) of the Federal Highway Administration Manual on Uniform Trafic Control Devices (Mll'l?CDl (D) A overhead cantilever railroad crossing sign with lights was required on Commerce Street at the crossing, pursuant to Section 800406) (E) An active advanced warning sign approximately 170 feet prior to the crossing, should, have been provided pursuant to Railroad Highway Grade Crossing Handbook (Rev. 2nd Ed, Aug. 2007), p. l2, and thus the MUTCD Section 2005 and Table 2 (7?45 Figure '39. (F) The Sill/HE OF NEW YORK was further negligent in constructing placing and permitting a building structure to be located in Southeast quadrant ot?crossing, presenting dangers set forth above. (G) A wayside horn system as required by Railroad Highway Grade Crossing Handbook (Reva 2?d Ed, Aug. 2007). (ll) Signage warning of humped crossing and skewed track/road interface as set forth in MUTCD should have been installed. (I) Suf?cient additional illumination at crossing should have been provided and ensured that existing reflective signs were suf?ciently visible. 0) The crossing was equipped with simultaneous preemptiona which was insuf?cient to allow traf?c to clear from the roadway prior to a train crossing. The crossing should have been equipped with advance pre?emption or, if so provided, the OF NEW YORK was negligent in not ensuring that it worked properly. The preemption system should have been installed and programmed to provide priority to train activation in all circumstances -4- and allow suf?cient time for vehicular traffic to clear; (K) 'l?he OF NEW YORK was farther negligent in permitting and not properly maintaining and trimming Vegetation which interfered with sight lines to warning signs, tracks and crossing. . 1 *urtherrnorc, the 1 A CF NET "r?tijl is was negligent in ailing to initiate a Us (Li program to educate motorists of dangers at grade crossings, particularly those crossings without tourequadrant gates and lights and how to proceed safely, and failed to establish a public awareness program pursuant to Operation Lifesaver or independently, to educate residents regarding safety issues at grade crossings including.) but not limited to, the tact that crossing gates were designed to be easily broken by motor vehicles to provide escape route if trapped on a track or in a crossing. Furthermore, the STATE OF NEW YORK was negligent and caused the accidentr injuries, pain and suffering and death to Claimant?s decedent, without any negligence on the part of decedent contributing thereto because of the failure to close the crossing; the inadequate warning ofthe existence of railroad crossing tor ali the reasons set forth above} together with inadequate and improperly designed preemption systen?u and failure to provide active advance warning sign prior to the crossing and crossbuck on left side of road which would have alerted ELLEN BRODY (and the Witness) of the presence of the railroad crossing well before she encountered it, all of which caused decedent to be incapable of appreciating and protecting herself from the approaching danger and caused her to become trapped on the tracks without a known escape routes so that decedent was caused to be unknowingly in the path of an oncoming train without suf?cient time or notice of the approaching train to protect herself from the extreme danger, 3. The claim arose on or about February 3, 2015, at approximately 6:26 pm when the vehicle (201 Mercedes Benz, ML350 SUV) which decedent, ELLEN BRODY, was operating was struck. by a northbound Metro?North Railroad passenger train (number 659) on the Harlem Line of the Metro?North Railroad at the Commerce Street highway?rail grade crossing located in the hamlet of Valhalla, Town ot?Mount Pleasant, County ot?Westchesten State ol?NeW York (US. DOT Grade Crossing ll) No. 529902V). -5- Prior to the time of the collision, ELLEN BRODY was operating her vehicle on the Taconic State Parkway when she exited because of a motor vehicle accident on the Taconic, She eventually made her way to Commerce Street, a road and. location with which she was not familiar and had never traveled before. She was traveling in a Northeast direction on Street in heavy, slow-moving, stop?ani?go vehicular traffic when she came to a stop. According to a witness who was also stopped at that location immediately behind her, despite. his familiarity with the location of the accident and knowledge of railroad tracks in the general Vicinity, he was unaware that he was stopped at a railroad crossing. He thought he was stopped for a traffic light, which he knew was in the Vicinity, and that there was a line of stopped vehicles between the Brody vehicle and the traffic light at Commerce Street intersection with the laconic. According to the witness, the first time he was aware he was near a railroad crossing was when a gate with lights flashing, suddenly without warninv, lowered and struck the rear portion of the Brody vehicle. According to the witness, BRODY exited her vehicle, looked at the back of her vehicle, touched the gate, then got back into her vehicle. After some time, she drove forward in an Easterly direction and was immediately struck by the aforementioned train resulting in her injuries and death. The witness did not see or hear the approaching train until it was immediately upon ELLEN BRODY when the front car reached the crossing. Thus, ELLEN BRODY was likely similarly unaware of the presence of the crossing or the fact that her vehicle was in a railroad crossing prior to the flashing of the warning lights and the gate coming down striking her vehicle or until the approaching train was immediately upon her. 4. As a result of the aforesaid, ELLEN BRODY sustained multiple injuries, including but not limited to, blunt force trauma with fractures of the ribs and clavicle; contusions of the lung; laceration of the liver; burns of the body, pain, suffering, pie?impact terror, emotional distress, all ultimately resulting in her death. ALAN BRODY, as Administrator, on behalfof the distributees of the Estate of ELLEN BRODY, including her three daughters, Julia Brody, Danielle Brody and Alexa Brody, claims wrongful death. More specifically, ELLEN distributees claim loss of pecuniary support; loss of household services; loss of inheritance, and her daughters claim the loss of their mother?s intellectual, moral and physical trainng guidance and assistance. Claimant and decedant have suf?f?red damages which will be set by the Ceurt. Claimant therefore present this claim for adjustment and payment. Dated: February 3, 2016 New Yerkl New f7 if? 7635gm. El?n Russotti RUSSOWL SHAPIRO HALPERW Attameys for Claimant 420 Lexington Avenue, Suite 2750 New York, New York 10170 (2l2) 9867353 VERIFICATION BY ATTORNEY Philip Russetti, an attnmey duly admitted tn practice hefnre the Courts; in the State of New Yerki hereby af?rms, under the penaltiee (if per} my, as fellows: 1 within; that i. That depenent is the atterney for the Claimant in the aetini deponent has read the t?ei?egoing CLAIM and knew the contents theree'f; that the same is true in depnnentls Own knowledge except as; to the matters; therein stated tn he alleged upon and heliet; and as to these matters; deponent believes it tn be true. The reason that this veri?cation is not made by Claimant and is made by 2. deponent is that Claimant dees net reside in the county where the attorneys for the Claimant have their of?ce. Deponent further says that the source. (if depenent's and the grounds 3? nl? depenent's belief as to all matters not, stated upon depenent's knowledge are from 9: Miw? "a he). investigations made on behalf 0f said plaintiffts). Philip Russotti i