A state appeals court has thrown out a $3.6 million jury award given to a dishwasher who lost his left arm in a drunken fall beneath the wheels of a subway.
Francisco Marino had sued the city Transit Authority after he tumbled in front of an oncoming train in 1989. He admitted he had drunk between three and six beers, but claimed the agency should have removed him from the subway platform after a clerk noticed he was drunk.
A Bronx jury awarded Marino $9.3 million in 1990, prompting the dishwasher, who had emigrated from Mexico six months earlier, to say “God bless America!” But the trial judge struck down the award as excessive, and ordered a second trial. Jurors in the 1994 retrial awarded Marino $3.6 million.
On Tuesday, that smaller sum was thrown out by the state Appellate Division, whose judges ruled that Marino did not prove his case. Marino’s lawyer, Alan Shapey, said he would appeal.
“How many times do we have to win this case?” Shapey said.