================================================================= This memorandum is uncorrected and subject to revision before publication in the New York Reports. ----------------------------------------------------------------- No. 103 SSM 6 Rosemond Barney-Yeboah, Respondent, v. Metro-North Commuter Railroad, Appellant.

Submitted by Paul A. Krez, for appellant.

Submitted by Jason M. Murphy, for respondent.

MEMORANDUM: The order of the Appellate Division should be reversed, with costs, Supreme Court's order reinstated, and the certified question answered in the negative. This is not the type of rare -1- -2- SSM No. 6 case in which the circumstantial proof presented by plaintiff "is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable" (Morejon v Rais Constr. Co., 7 NY3d 203, 209 [2006]). * * * * * * * * * * * * * * * * * On review of submissions pursuant to section 500.11 of the Rules, order reversed, with costs, order of Supreme Court, New York County, reinstated, and certified question answered in the negative, in a memorandum. Chief Judge Lippman and Judges Read, Rivera, Abdus-Salaam, Stein and Fahey concur. Judge Pigott dissents and votes to affirm for reasons stated in the memorandum at the Appellate Division (120 AD3d 1023 [2014]).

Decided April 2, 2015

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