SUPREME COURT OF THE STATE OF NEW YORK COUNFY OF WESTCHESTER -wx ALAN as 0f the Estate of ELLEN BRODY a/k/a ELLEN GAIL SCHAEFFER BRODY, and ALAN BRODY.) Individuallm SUMMONS sgainsb METRONORTH COMMUTER RAILROAD COMPANY else as RAILROALL METROPOLITAN TRANSPORTATION AUTHORLFY, STEPHEN SMALLS, COUNTY OF WESTCHESTEK TOWN OF MOON PLEASANT: ARGENT VENTURES, and MEDTOWN TDR VENTURES DefendantsTHE ABOVE NAMED DEF YOU ARE HEREBY SUMMONED to appear in this action by serving an answer on plaintiff?s attorneys Within 20 days after service of this exclusive of the day of service 01? Within 30 days after service is enmplete ifthis is not persnnally delivered to you within the State of New York. In ease of your failure to answer, Judgment will be taken against you by default for the relief demanded in the Complaint. Plaintiff designates Westehester County as the place nftrial. The basis of venue is pursuant to CPLR 504 and 505. Plaintiff resides at 91 I?lighland Read; Searsdalei NY 10583. DATED: New York New York Febmary 3, 2016 fig? I Yoursigietegg 3g A. RUSSOTTI wmnis'rn, RUSSOTTI, SHAPIRO ILALPERN L151) Attnmey for Plaintii?s) 420 Lexington Avenue New title, NY l0l70 (212) 9863353 ADDRESMES): RAILROAD Illegal Departmem 4'20 Lexington Avenue, 1 1m Floor New York, Now York lOl ?70 AU Tl IORITY General Counsel '2 Broadway New York, New York 10004 SMALLS Clo COMMUTER RAILROAD Legal Department 420 Lexington Avenue: l1h l59loor New York, New York 101 70 COUNTY OF WESTCHESTER Michaolian Of?ce Building Department of Law 148 Martina Avenue ?Nhlte Plains, New York lOoOl TOWN OF MT. PLEASANT One Town Hall Plaza Valhalla? New York l0595 ARGENT VENTURES, LLC do Andrew Penson Sil Fifth Avenue, 34?h Floor New York New York 10 76 MIDTOWN TDR LLC 551 Fifth Avenua 34Eh Floor New York, New York 10176 SUPREME COURT OF THE OF NEW YORK COUNTY OF -WX ALAN as; Administrator of the Estate 0f ELLEN BRODY a/ler?a ELLEN GAIL BRODY, and - LAN BRODY, Individually VEREFIED COMPLAINT Plaintif? index Na: ?against? METRO-NORTH COMMUTER RAILROAD COMPANY also known as METRONORTH RAILROAD ETROPOLITAN TRANSPORTATION STEPHEN SMALLSIS COUNTY OF TOWN OF MOUNT PLEASANT, ARGENT VENTURESS, LLC and DR LLC, Defendants. Plaintiff", ALAN BROOK Individually and as Administrator 0f the Estate at ELLEN BRODY, by his attarrieya SHAPIRO HALPERIN, LLPL complaining of the defendants? upon information and belief, allege as follows: THE PARTIES l. At all times hereinafter mentioned, plaintiff ALAN BRODY was and still is a resident of the State el?New York, Ceanty of Westehester. 2. At all times hereinafter mentioned, plaintiff ALAN BRODY was the husband of ELLEN BRODY a/k/a ELLEN GAIL SCHAEFPER BRODY (hereinafter deceased. 3. Orr April l3, 2015, ALAN BRODY was appointed as the Administrator of the Estate of ELLEN BRODY by the Surregate?s Cetirt, Westehester Ceunty. 4. On or about May l, 20l5, and Within ninety days of the incident complained of herein; plaintiff Served a notice oi" claim upon METROPOLITAN TRANSPORTATION (hereinafter pursuant to Section of the General Municipal Lat-y and Section l27ot2) ofthc Public Authorities Law. 5, On or about May it, 2015, and within ninety days ot?the incident COl?t?iplaiI?lcd of herein, plaintiff a notice of claim upon defendant METRO-NORTH (hereinafter pursuant to Section 50%: of the General Municipal Law and Section l276 of the Public Authorities Law. 6? On or about. May 1, 2015, and within ninety days ofthe incident complained of herein, plaintiff served a notice of claim upon defendant COUNTY OF WESTCHESTER pursuant to Section of the General Municipal Law. 7. On or about May it 2015, and within ninety days ot?the incident complained of herein, plaintiff served a notice of claim upon delendant TOWN OF MOUNT PLEASANT pursuant to Section 50-6 of the General Allunicipal Law. 8. A hearing pursuant to Section 50(h) of the General Municipal Law was held of Plaintiff} ALAN BRODY on or about October l3, 2015. he COUNTY OF did not appear at the hearing and waived its right to conduct a 50?h hearing of ALAN BRODY. 9. More than thirty days have passed Since the date of service of the respective notices of claims and defendants have not settled or otherwise adjusted this claim and that this action is brought within one year and ninety days of the occurrence. 10. All conditions precedent. to the bringing of this action against the defendants have been satisfied. ll. On February 33 2015 at approximately 6:26 ELLEN BRODY was killed when the vehicle which she was operating (Mercedes Benz ML350) was struck by a northbound passenger train, number 659,, on the Harlem Line of NORTH at the Commerce Street highway?rail grade crossing (US. DOT Grade Crossing ll). No, located in the hamlet of Valhalla. flown of Mount Pleasant, County of Westehester, State of New York. 12. At all times hereinafter mentioned the defendant METRO-NORTH was a public bene?t corporation duly organized and existing under the laws of the State of New York. 13. At all times hereinafter mentioned defendant was a public bene?t corporation duly organized and existing under the laws of the State ot?New York. l4. At all times hereinafter mentioned, the defendant is a wholly owned subsidiary and division of defendant MTA. 15. At all times hereinafter mentioned, defendant owned, operated, managedi maintained and controlled a commuter rail service, known as NORTH, from the City of New York to portions of the State of Connecticut, and Dutehess, Putnam and Westchester Countiest which included the aforementioned train No. 659 which was involved in the subject accident. 16. At all times hereinafter mentioned, defendant MTA owned, operated, managed, maintained and controlled a commuter rail service, known as METRO-NORTH, from the City of New York to portions of the State of Connecticut, and Dutchess, Putnam and Westchester Counties, which included the aforementioned METRO-NORTH train No. 659 which was involved in the subject accident. l7, At all times hereinafter mentioned, defendant owned, operated, managed, maintained and controlled the Harlem line of l8. At all times hereinafter mentioned, defendant MTA owned, operated, managed, maintained and controlled the liarlern line l9. At all times hereinafter mentioned, and MTA owned, operated, managed, maintained, and controlled the land, tracks, entire roadway intersection including the crossing, safety devices, roadway markings, signage, signals, pre-emption systems and devices, gates, lighting, and devices and vegetation in the Vicinity of the surrounding tracks at and near the aforementioned Commerce Street highway~rail grade crossing. 20. At all times hereinafter mentioned, defendant LLC (?hereinafter was and still is a New York Limited Liability Company organized and existing under the laws of the State of New York, and authorized to do business and doing business in the State of New York. 21. At all times hereinafter mentioned, defendant TDR. VENTURES, LLC TDR was and still is a foreign limited liability corporation authorized to do business and doing business in the State ofNeW York. 22. At. all times hereinafter mentioned, ARGENT and TDR owned, operated, managed, maintained, and controlled the land, tracks, entire roadway intersection including the crossing, safety devices, roadway markings, signage, signals, preemption systems and devices, gates, lighting, and devices and vegetation in the vicinity of the surrounding tracks at and near the atorementioncd Commerce Street highwaywrail grade crossing. 23. At all times hereinafter mentioned, MTA and METRO-NORTH had a 4 tori? term. lease with ARGENT andfor TDR ranting MTA and operation, management, maintenance and control of land, tracks, entire roadway intersection including the crossing, safety devices, roadway markings, signage, signals, prewemption systems and devices, gates, lighting, and devices and vegetation in the vicinity of the surrounding tracks at and near the aforementioned Commerce Street highnl?aywail grade crossing 24. At all times hereinafter mentioned, the defendant, TOWN OF MOUNT was and still is a municipal government established by the State ofNew York. 25. At all times hereinafter mentioned, the defendant, TOWN OF MOUNT PLEASANT, was and stiil is a municipal corporation organized and existing under the laws of the State ot?New York. 26. At all times hereinafter mentioned, the defendant, TOWN OF MOUNT PLEASANT, owned, managed, controlled, maintained, and operated the land, tracks, entire roadway intersection including the crossing, safety devices, roadway markings, signage, signals, pre?emption systems and devices, gates, lighting, and devices and vegetation in the vicinity of the surrounding tracks at and near the aforementioned Commerce Street highway~ rail grade crossing, as well as the entrance to the Taconic State Parkway and its intersection. 27. At all times hereinafter mentioned, defendant, COUNTY OF was and still is a municipal corporation organized and existing under the laws of the state of New York. 280 At all times hereinafter mentioned? the defendant, COUNTY OF WESTCHESTER, owned, managed? controlled, maintained, and operated the land, trackst entire roadway intersection including the crossing, safety devices? roadway markings, signage signals, preemption systems and devices, gates, vicinity of the surrounding tracks at and near the aforementioned Commerce Street highway- rail grade crossing, as well as the entrance to the Taconie State Parkway and its intersection. 29. At all times liereiriatter mentioned, defendant SMALLS was an agent, servant, antlfor employee of defendant 30. At all times hereinafter mentioned, defendant STEPHEN SMALLS was an agent, servant, and/or employee of defendant MTA. 3i. At all times hereinafter mentioned, defendant STEPHEN SMALLS was acting Within the scope of his employment andfor agency with defendants METRO-NORTH andz?or MIA. 2. On February 3, 2015, defendant STEPHEN SMALLS was the engineer Lil and operator of the aforementioned METRO-NORTH train number 659 involved in the subject collision. AS AND FOR A FIRST CAUSE OF ACTION NEGLIGENCE, PERSONAL INJURY AND PAIN AND SUFFERING 33. Plaintiffs hereby repeat, reiterate and reallege each of the foregoing allegations with the same force and effect as ifntore fully set forth at length herein. 34. The defendants by their agents, servants,licenseescontractors, subcontractors, affiliates, and employees were negligent, careless and reckless in the ownership? construction, operation, design, maintenance, control and management of the Commerce Street highwayrail grade crossing, including but not limited to, negligence in the ownership? construction, operation, maintenance, desigm control and management of the roadway, signage, lighting, barriers, gates, signals, tracks, ViSibl??: and audible warning devices:hts, preemption systems and devices, substations, Signai houses, vegetation at, and near said crossing, appurtenances? at and around said crossing in that the crossing had multiple hazards and failed to meet minimum safe construction standards and minimum standards of Federal twilighway Administration?s Manual on Uniform Traffic Control Devices (MUTCD) and Railroad Highway Grade Crossing Handbook and generally accepted standards for safe railroad crossings. The defendants Wine further negligenta careless and reckless in allowing and failing to correct multiple safety hazards and defects at, the subject highwaywail grade crossing including, but not limited to: a hazardous and defective preemption system which failed to provide first priority to train activation and suf?cient time for vehicular traf?c to clear, in Violation of the a hazardous skew?angle of the roadway and tracks of H7 degreesi which limits a motorists field of View and line of sight to see an oncoming train from the southa especially on the westernmost track and limits a motorist?s ability to hear the train?s audible warnings system because of the topography which renders the audible warning system ineffective; a building structure located in the southeast quadrant of the intersection which 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, creating a glare interfering with the motorist?s Vision; vegetation which blocks a motorist?s line of sight of the tracks and an approaching train, and; an elevated railway design (ie. hump) of the crossing, especially together with a depressed roadway immediately preceding the crossing, which 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; the ambient lighting at and near the crossing which is inadecuate and does not meet minimum, national standards, preventing a n'iotorist from seeing the crossing or signs at or near the crossing; the existence of a short queue between the railroad tracks and the traffic signal beyond the crossing at the intersection of Commerce Street and the laconic State Parkway, which creates a hazard, and increases the likelihood that a car can get trapped on the tracks due to stopped traf?c; the absence of an escape area For a vehicle to move to away from the crossing in the event that a motorist becomes trapped between another vehicle and the gate. 35. Because of the aforesaid safety hazards and defects at the subject hi ghwayrail grade crossing, coupled with the heavy train volume at the crossing, low utility of said crossing due to the normally low level of vehicular traf?c on Commerce Street and availability of two nearby safe crossings at West Stevens Street and at Lakeview Avenue (2044 feet away) and because of the considerations set forth in the Railroad Highway Grade Crossing, Handbook recommending closure of redundant crossings, the hazardous Commerce Street crossing was redundant and unnecessary, and defendants were negligent, careless and reckless in failing to petition the Commissioner of the New York State Department of Transportation to close and eliminate this grade crossing, pursuant to Section 222 of the New York il?ransportation Law, which would have resulted in its closing due to 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. 36. in the absence of closure of the subject highway~rail grade crossing, as set forth above the detendants were negligent, careless and reckless in failing to take the foliowing remedial action to make the crossing safe: particularly in light of a prior auto/train accident at this crossing in 11984? including, but ?Kiri limited to: providirg a preemption systen which gave first priority to train activation in all circumstances; failing to utilize funds allocated by the New York State Department of Transportation in 2009 or thereafter for planned upgrade of safety at the crossing by installation of additional warning lights/signs and failing to follow?up to have lights! signs installed pursuant to that plan far over 5 years; Because the quantity, quality, placement and content of the signage and warning signal light near the crossing did not provide sufficient, adequate or safe advance warning to motorists of the presence of the crossing, approaching train traffic or the hazards presented, together with ineffective reflectivity of existing signage, and 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 and supplemental flashing light signals were required on the left side of Commerce Street, as illustrated in figure 28 of the Railroad Highway Grade Crossing Handbook, Rev. 2nd Ed. August 2007; A supplemental reflector crossbuck sign with the above described lights was required to be 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 8303 (06) of the Federal Highway Administration Manual on Uniform Traf?c Control Devices (Mli?l?CD); An overhead cantilever railroad crossing sign with lights was required on Conunerce Street at the crossing, pursuant to Section 16) of An active advanced, warning sign approximately l70 feet prior to the crossing, was required pursuant to Railroad Highway Grade Crossing I-iandbook (Rev. 2nd Aug. 2007), p. HQ, and the and iable 2 04; A wavside Horn system required as pros/tried tor a; i?ri ?4 TCD Section 2".05 in the Railroad Highway Grade Crossing Handbook (Rev. 2mi Ed, Aug. 2007), pi l0; Signage warning of humped crossing and skewed track/road interface as set, forth in was required; Suf?cient additional illumination at the crossing was required; defendants should have ensured that existing reflective signs were sufficiently visible; the crossing was equipped with simultaneous preemption, which was insuf?cient to allow!? traffic to clear from the roadway prior to a train crossing, and the crossing should have been equipped with advance pre?ernption or, if so provided, defendants were negligent in not ensuring that it worked properly; the pre-emption system should have provided first; priority to train activation, in compliance with the defendants were negligent in permitting and not properly maintaining and trimming vegetation at and near the crossing, which interfered with sight lines to warning signs, tracks and crossing; defendants METRO-NORTH and MTA were negligent in failing to have a sufficient pilot/cowcatcher/fender or other device on the subject train to deflect and push to the side an obstacle on the track, including a vehicle; defendants NORTH and MTA were negligent in failing to initiate a program to educate motorists of dangers at grade crossings, particularly those crossings without fourwquadrant 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 fact that crossing gates were designed to be easily 10 broken by motor vehicles to provide escape route if trapped on a track or in a crossing. 37. Defendants and MTA, through its agents, servants and employees, including defendant STEPHEN were negligent careless and reckless in Lama? uric: VG C2 the oreration the aforesaid train number 6593. including but not limited to: failing to decedent?s vehicle; failing to timely observe decedent?s vehicle; traveling at an eon:cessives unsafe speed, under the circumstances; failing to apply the brakes of the train; failing to timely and adequately apply the brakes of the. train; failing to sound the train?s horn and/or audible warning device; failing to timely and adequately sound the trains horn and/or audible warning device; failing to avoid an impact with decedent?s vehicle; failing to limit the train speeds through the subject crossing, particularly in light of the heavy vehicular traf?c due to an accident on the Taconic in the area of the crossing; in failing to properly and adequately train and educate defendant STEPHEN SMALLS, with respect to the safe operation of a train; in negligently hiring and retaining defendant STEPHEN as a train engineer/operator. 38. Defendants, their agents, servants and employeesi were negligent in failing to adequately control, direct and divert vehicular traffic on the Taconic Parkway and the roads in the area oi?Cornmerce Street highway?rail. grade crossing in light of the accident on the Taconic Parkway. 39. By reason of the foregoing, ELLEN BRODY was not alerted of the presence of the crossing before she encountered it, 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 route, so that decedent was caused to be unknowingly in the path of an oncoming train without sufficient time or notice of the ll approaching train to protect herself from the extreme danger. 40. By reason of the foregoing, on February 3a 2015, decedent ELLEN vehicle was caused to be struck by the aforesaid train number r659, resultin in rnuninte hndily iniuries tn hen includin out nut limited to, blunt toree trauma in with fractures of the ribs and elaviele, eontusinns of the lung, laceration of the liver, burns of the body, pain? suffering, pre-?in?ipaet terror: emotional distress? all ultimately resulting in her death? 4i. The aforesaid collision was due entirely to the negligeneei carelessness and recklessness of defendants without any fault on the part of ELLEN BRODY, deceased 42. By reason of the foregoing decedent, ELl.,lfiN BRODY was damaged and, ALAN BRODY, as Administrator of her estate, seeks an award of money damages in a sum whieh exceeds the jurisdictional limit of all lower Courts which would otherwise have jurisdiction. 43. This action falls within one or more of the exceptions set forth in Section 1602 ufthe CPLR, including section l602(7). AS FOR AN SECOND CAUSE OF ACTION - WRONGFUL DEATH 44. Plaintiffs hereby repeata reiterate and reallege each of the foregoing allegations with the same force and effect as if more fully set forth at length herein. 45, By reason of the foregoing, ELLEN BRODY died on February 3, 2015. 46. As such, the distributees of the estate suffered pecuniary loss, including medical, expenses, funeral and burial expenses? loss of support, loss of parental guidance and nurture, loss of services and loss of estate accumulations. 47. AS a result of the feregoingy plaintiff ALAN BRODY, the Administrator of the Estate of ELLEN BRODY seeks an award of money damages on behalf 0f the distributeeg in 21 3th which exceeds the jurisdictienal limit 9f all lower Cam/[S which. weuld ether?mee have juri edict?en. WHEREFORB, plaintiff ALAN BRODY, Individually and as Adminietrater of {he Estate 0f ELLEN BRODY, demands; judgment against the dele11d_ant3,,jeintly and severally, on the First and Second Causes; of Action in amounts which exceed the monetary jurisdiclion 0f all other calms? tegether with cast/sf, disbursements and interest. Dated: New York New York February 3, 2016 YQuzrs, g; gr; Ki ,1?3 ff gs" inn/V gray/a" ?mk?wf?m PHILIP RUSSOTTI RUSSOTTI, SHAPIRO LLP. Attemeys for Plaintiff ALAN BRODY 420 Lexington Avenue Suite 2750 New York, NY 10170 (212) 9863353 SUPREME. COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ALAN BRODY, as Administrator of the Estate of ELLEN BRODY ark/a ELLEN GAIL SCHAEFFER and ALAN Individually, Plaintiff, Index No: ~against? COMMUTER RAILROAD COMPANY also known as RAILROAD, TRANSPORTWIWION STEPHEN SMALLS.) COUNTY OF TOWN OF MOUNT PLEASANT, ARGENT VENTURES, LLC and MIDTOWN TDR LLC, Defendants. A. RUSSOTTL an attorney admitted to practice law in the Courts of this State, affirms the following under the penalties of perjury: l, am a member of the law firm RUSSOTTI, SHAPIRO HALPERIN, LLP, attorneys for plaintiff. I make this veri?cation pursuant to C.P.L.R. ?3020(d)(3) in that plaintiff is not presently in the County wherein my of?ce is located. 2. have read the foregoing SUMMONS and COMPLAINT and know the contents thereof. The same is true to my knowledge, except as to matters therein stated to be alleged on information and belief and as to those matters 1 believe them to be true. 3. My belief as to the matters not stated upon my own knowledge is grounded upon information supplied to me by the plaintiff and the information contained within the case tile maintained by this of?ce. 7 Eff/ii 7? if Dated: New York, New York If; if, 5" 3; 5 ?it; Februaryii 2016 it i in ?t 7, we" oi" Poirot? Russorri