Families sue as Valhalla crash anniversary nears

• Lawsuits claim train crossing was poorly marked
• Driver Ellen Brody was victim of "the same circumstances," lawyer says
• Town officials should have shut down the crossing because it was unsafe, lawsuit says

The families of two Westchester County men killed last year when a Metro-North train slammed into a sport-utility vehicle in Valhalla filed lawsuits this week, laying blame for their deaths on a poorly designed crossing and an engineer too slow to hit the brakes.

With the one-year anniversary of the Feb. 3, 2015, crash approaching, lawyers for the families of Joseph Nadol, 42, of Ossining, and Robert Dirks, 36, of Chappaqua, filed separate negligence lawsuits in state Supreme Court in White Plains seeking unspecified damages.

Among the defendants are Metro-North and its engineer, Steven Smalls Jr., Westchester County and the town of Mount Pleasant.

Not named as a defendant was Ellen Brody, 49, a mother of three from Edgemont, who was driving a 2011 Mercedes SUV that was struck by a northbound train around 6:30 p.m. in the Commerce Street crossing. Six people, including Brody, were killed in the deadliest accident in Metro-North’s 33-year history.

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“She’s a victim of the same circumstances,” said Howard Hershenhorn, the attorney representing Christine Ueda, Dirks’ wife.

The lawsuits tick off more than a dozen reasons for the defendants’ alleged negligence. Among them:

• Motorists would have trouble seeing a train coming from the south because of a building that blocked the line of sight and interfered with the train’s audible warning system.
• A poorly designed third rail became dislodged during the crash and entered the train’s first car, where several of the victims were riding.
• Local officials should have petitioned the state Department of Transportation to close the crossing because they knew it was a safety hazard.
• Smalls was travelling at “an excessive, unsafe speed under the circumstances” and failed to apply the brakes on time.

Hershenhorn said he’s consulted with a number of railroad safety experts who’ve taken a close look at conditions at the crossing.

“We are going to focus on the operation of the train and the train operator and his failure to recognize and stop the train,” Hershenhorn said. “We have spoken with qualified experts who have told us that these are very strong areas.”

Officials say the train was travelling 58 mph — 2 mph below the speed limit — and slowed to 49 mph when he applied the brakes 300 feet before the collision after he spotted Brody’s SUV in the crossing.

Metro-North officials declined to comment.

The lawsuit also claims that local officials “failed to control and direct” car traffic after an accident that night on the nearby Taconic State Parkway.

"Ellen Brody was not properly and adequately alerted to the presence of the aforesaid crossing before she encountered it, causing her to become trapped on the tracks in the path of an oncoming train,” the lawsuit claims.

Mount Pleasant town Supervisor Carl Fulgenzi said he was hopeful the case would be resolved in the town's favor.

“It’s something the lawyers will fight out, I guess," Fulgenzi said. "We’re very hopeful that the town will not have any responsibility. We don't control the crossings, we don’t maintain them, it’s up to the railroad and the (Department of Transportation).”

In an interview with The Journal News/lohud last month, Brody’s husband, Alan, blamed a poorly marked grade crossing for his wife’s death.

“I can see why people, equally unfamiliar with the scene and stunned by the devastation, would look for a villain,” he said. “But Ellen was the truly innocent victim. The villain is the authority that abrogated its duty to maintain a safe and properly signed crossing.”

Witnesses told investigators that Brody was stopped on the tracks facing east when she got out of her car after a gate arm hit the rear of the SUV. She got back in the car and drove into the path of the train, they say.

Dirks was a research scientist with a degree from the California Institute of Technology and the father of two children, ages 5 and 2. Nadol worked as an aerospace and defense equity analyst with JP Morgan Chase in Manhattan and was the father of three boys, ages 10, 9 and 7.

In December, the National Transportation Safety Board released some 1,000 pages of documents gathered in its investigation of the crash. A final report is due in the coming months.

Staff writer Matthew Coyne contributed to this report.