This is the first in a series of stories on the deadliest crash in Metro-North history.
Metro-North quietly settled a legal claim made by the now-retired locomotive engineer who operated the train that collided into a Mercedes SUV at the Commerce street railroad crossing in Valhalla four years ago. The deadliest crash in Metro-North history killed the driver and five commuters from Westchester and Fairfield counties. Fifteen train passengers were injured.
As another anniversary passed marking the deadliest commuter railroad crash in Metro-North history, sadly there are few new safety improvements to report on since the Feb. 3, 2015, accident, the deadliest in Metro-North history.
Metro-North refuses to reveal financial details of the settlement with its former engineer, Steven Smalls, 36, of Beacon, setting up a legal challenge that has attorneys for the injured passengers and survivors of those who died accusing the railroad of trying to sway Smalls’ testimony in pending litigation.
Smalls was promoted to operate trains in March 2014, about 11 months before the fatal crash, after working as an MTA electrician since 2010.
The National Transportation Safety Board’s investigation cleared Smalls of responsibility for the crash. Its 2017 report said Smalls sounded the northbound train’s horn at 6:25:56 p.m., or 17 seconds before the crash. Fourteen seconds after sounding the train's horn and three seconds before impact, Smalls activated the emergency brakes while the train was going 59 mph. At that point, the train was about 260 feet from Ellen Brody’s Mercedes SUV
In Smalls' own testimony (attached below), he admits "seeing a reflection" on the northbound tracks as he passed the Lakeview Avenue grade crossing about 1,200 feet before the collision. He blew the train''s horn. The engineer admitted to speeding up from 40 mph to 56 or 58 mph, on the final fatal stretch to the Commerce Street crossing. That's still within the recommended speed limit of 60 mph, but Smalls said he did not "dump" the train, meaning pull the emergency brake, until he saw the SUV driver, Brody, 49, of Edgewood "inch up" fully "fouling the track."
Brody, a mother of three, was killed along with five passengers aboard Train 659.
Brody's husband, Alan, and lawyers for commuters killed during the fiery collision -- which ripped up the third rail, engulfing two railcars in flames -- claim the Metro-North settlement was aimed at buying Smalls' silence about training, long hours and suspected gate, signage and signal problems at the fatal crossing. One of the crossing bars landed on the rear of Brody's SUV, and there were subsequent malfunctions at Valhalla railroad crossings in the following month.
Metro-North denies an ulterior motive behind the railroad's decision to settle Smalls' claim. Metro-North said Smalls acted heroically on the day of the crash and was without fault: "The NTSB concluded that Mr. Smalls did not do anything wrong," Metro-North spokeswoman Nancy Gamerman said.
Brody’s estate has been named as a defendant in several lawsuits filed in state Supreme Court in Westchester, including one by Smalls, which claims he suffers from Post-Traumatic Stress Disorder. (PTSD)
Smalls has not returned to work and is no longer employed by Metro-North. He is suing the Town of Mount Pleasant, saying the town knew the crossing was dangerous after an earlier accident and should have shut it down.
Most of the lawsuits filed by injured passengers and the estates of the dead say responsibility for the accident rests with Metro-North and Smalls. They allege, among other things, that Metro-North signs near the crossing were confusing and that Smalls failed to apply the brakes in time, claims that Metro-North disputes.
Smalls went on disability for Post Traumatic Syndrome Disorder (PTSD) and is studying for a degree in social work at a Connecticut community college.
Brody had left her jewelry store job in Chappaqua before encountering a traffic jam along the Taconic State Parkway in Mount Pleasant that followed a head-on collision. Brody was unfamiliar with the dark, narrow roads that crisscross the Taconic and railroad tracks in Valhalla, her husband said.
As bumper-to-bumper traffic was detoured over railroad tracks at Commerce Street, Brody briefly stepped out of her Mercedes SUV to check a crossing gate that came down on the rear of her car.
Also killed in the February 2015, collision were: Bedford Hills residents Eric Vandercar, 53, and Walter Liedtke, 69; New Castle residents Robert Dirks, 36, and Joseph Nadol, 42; and Aditya Tomar, 41, of Danbury, CT.
Philip Russotti, the attorney representing Brody’s estate in a lawsuit against Metro-North, said Mrs. Brody was not even aware she was on a grade crossing when her SUV was hit.
"I attribute it to inexperience," Russotti said. "This is the first time he ever encountered anything on a crossing. He just froze. He didn't apply brakes until way too late. He admitted he didn't slow down."
Earlier last year, as word spread among attorneys that Metro-North settled Smalls’ claim before he’d even filed a lawsuit, attorneys demanded the railroad release details of the settlement. When Metro-North refused, the attorneys turned to Westchester County Supreme Court Judge Joan Lefkowitz, who sided with the families' attorneys in May 2018.
“No reason or authority has been proffered as to why any settlement agreement should not be disclosed other than the defendant and plaintiff Steven Smalls wish for it to remain confidential,” Lefkowitz wrote.
Metro-North appealed Lefkowitz’s decision to the state appellate division. Smalls' settlement has been ruled confidential while the appeals court decision is pending.
Metro-North’s attorney, Philip DiBerardino, said confidential agreements are essential to settling multiple lawsuits over the same accident.
“Disclosure of these confidential settlement agreements would give other litigants an unfair negotiating advantage and would likely increase the cost of, and impede prospects for, further settlements,” DiBerardino wrote.
Smalls' attorney, Steven Kantor, did not return calls for comment.
So how much money did Smalls, the engineer, get from the secret Metro-North settlement, along with his disability retirement benefits?
"That's the multi-million-dollar question," one lawyer said.See Attachment