Windley v City of New York

Annotate this Case

Download PDF

Windley v City of New York 2012 NY Slip Op 30964(U) April 10, 2012 Supreme Court, New York County Docket Number: 100182/05 Judge: Michael D. Stallman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON411212012 [* 1] Y SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. MICHAEL D. STALLMAN PART 21 Justlce WINKEYA WINDLEY, INDEX NO. Plalntlff, 100182/0S MOTION DATE 1123112 MOTION SEQ. NO. -v- 007 THE CITY OF NEW YORK and THE NEW YORK CITY TRANSIT AUTHORITY, Defendants. (And a thlrd-party action). The followlng papers, numbered Ito Notlce of Motlon; Afflrmation - Exhibits A-C I: 2 Afflrmatlon In Opposition 3 Replylng Affimation-Exhibit A 4 Uponthe foregoing papers, it I orderedthat this motion by defendant New s York City Transit Authority to vacate the decision and order dated May 20,201 1, and entered May 26,201 I is granted, and the decision and order and any , judgment entered thereon are vacated; and it is further . . 2 .. 29 ORDERED that the motion for summary Judgment by third-party defendant 4761 BroadwayAssociates, LLC is restored and recalendared in the Motion Submissions Part (60 Centre St Room 130) to June 5,2012 at 9:30 a.m. for submission of opposition and reply papers; and it is further =8 5 i E= m a z =s :9 3$ g w 9 + E !? ORDEREDthat opposition papers shall be sewed by May 7,2012; reply papers shall be served by June 4,2012. Inthis action, plaintiff alleges that, on November 5,2003 at approximately 7:40A.M., she slipped and fell down the subway staircasedesignated 02-A while walking to enter the A train subway station located at the northwest corner of Dyckman Street in Manhattan. Defendant New York City Transit Author@ (NYCTA) impleadedthird-party defendant 4761 BroadwayAssociates, LLC (Broadway Associates), alleging that was the owner of the staircase. (Continued.. . ) Page 1 of 5 [* 2] Windley v City of New Yo&, Index No. I0018212005 BroadwayAssociatescrnovedfor summaryjudgment dismissingthe thirdparty complaint (MotionSeq. No. 006). (CoffeyAffirm., Ex B.) It argued that it did not cause or create any defective conditionwithin staircase 02-Aand it did not maintain, operate, control or repair staircase 02-A. The motion was unopposed. In support of its motion, It submitted, among other things, the EBT transcript of Carmelite Cadet, a civil engineer employed by NYCTA, who testifiedthat NYCTA does not own the 02-Astaiway, and the EBT transcript of Irving Freilich, who worked in the real estate departmentof the MTA, who testified that, pursuant to a 1926 agreement between Broadway Dikeman Building Corporation, the building owner, and the City of New York, Broadway Dikeman was responsible to maintain the stairway at issue. (Coffey Affirm., Ex B.) However, BroadwayAssociates submitted an affidavit from Stanley Wasserman, a member of defendant BroadwayAssociates, who averred that BroadwayAssociates never maintained, operated, controlledor repairedthe subject staircase. Wasserman also stated that all the maintenance and repair of the subject staircase had been pedormed by the Metropolitan TransportationAuthority. 8roadwayAssocIat~s argued that the third-party actionwas barred by collateral estoppel. In Sanchez vNew York Ciw Transit Aufhority, which also involvedstainway 02-A, this Court granted Broadway Associates s motionfor summaryjudgment on default, stating, Movants [4761 BroadwayAssociates LLC and SW Management LLC] have demonstratedthat they do not own or control or maintain the subject stairway from street to subway and that they did not act so as to cause or create a defective or dangerous condition. (Sanchez v New York City Tr, Aufh., Sup Ct, NY County, June 6, 2010, Stallman, J.). Finally, BroadwayAssociates also submittedcopies of maintenanceand repair records for the period of October 2005 through October 2006, which its counsel obtained during discovery in Sanchez. According to Broadway Associates, the records indicatethat NYCTA personnel repairedand replaced staircase 02-A. By decision and order dated May 20,201 Ithis Court granted Broadway , (Continued . . ) I Page 2 of 5 [* 3] * Windby v City of New York, Index No. 100182/2005 Associates s motionfor summaryjudgment on defautt ,severed and dismissed the complaintand any cross-claimsas against it,and directed the Clerk to enter judgment accordingly. The Court stated in pertinent part, Movant has sufficiently demonstrated entitlementto judgment as a matter of law. Movant has shown evidence that it does not own or control or maintainthe subject stairway from street to subway and that it did not act so as to cause or create a defective or dangerous condition there. Neither plaintiff nor other defendants have opposed this motion. Pursuantto CPLR 5015, NYCTA now moves (Motion Seq. No. 007)to vacate the Court s prior decision granting BroadwayAssociate s motion for summary judgment (Motion Seq. No. 006), contending that it did not timely oppose BroadwayAssociates motion due to law officefailure. NYCTA argues that it has a meritoriousdefense to the action, by virtue of an indenturedated December 28,1926, betweenthe City of New York and Broadway-Dyckman Building Corporation. Broadway Associates opposes this motion. NYCTA s motion is granted. NYCTA has shown a reasonable excuse for not opposing the motion, based on law office failure, i.a,a failure of timely communication between NYCTA s outside counseland In-housecounsd who was served with the motion papers. NYCTA has also dern0nstrated.a potentially meritorious defense based on the terms of the 1926 easerneltt betweenthe City of New York and Broadway-DyckmanBuilding Corporation. Article First states, in pertinent part: The Owner [Broadway-Dyckman BuildingCorporation hereby grants, conveys and releases unto the City, its successors and assigns, forever, except as providedherein, an exclusive right of way and easement, in through, over, and upon the Premises, and also in, through, over, and upon any future building or buildings erected in substitutiontherefor, for the purposes of constructing, maintaining and operating the means of access, ingress, and egross, (hereinaftercalledthe Approach ) betweenthe Station and the Street, and all necessary or appropriate appurtenances thereof shown on the substantially [sic]in accordance with the drawings annexed hereto and made a part of this Indenture. . 9, (Continued. . Page 3 of 5 .,) - [* 4] t c Windley v City of New Yo&, Index No. I0018212005 - (Coffey Affirm., Ex C.) Article Eighth states, in pertinent part, The Owner covenants with the City, that whenever the Entrances providedfor in Article Sixth shall be open, fheOwnershallkeep any means of access from such Entrances into the Premisses or through the premises to the street and any portions of the premises immediately accessible from such Entrancesor from such means of access in a thoroughlyclean, neat, safe, and attractive conditlon, in thorough repaif well-heated during cold weather, adequately lighted with electricity whenever artificial light is necessary. . . .91 (/d [emphasis supplied].) NYCTA contendsthat it is the successor-In-interest to the City and that Broadway Associates Is the successor-in-interest to Broadway Dyckman Building Corporation. s Contrary to BroadwayAssociates s argument, NYCTA i not collaterally estopped from assertingthat BroadwayAssociates, the purportedsuccessorin-Interestto Broadway-Dyckman BuildingCorporation,owns stairway 02-A, notwithstanding this Court s decision in Sanchez vNew York Clfy Transit Authority. -. Under New York law, collateralestoppel effectwill only be given to matters actually litigated and determined in a prior action. An issue is not actually litigated if there has been a default, a confessionof liability, a failure to place a matter in issue by proper pleading or even because of a stipulation. ...this Court has carved out a limitedexceptionwhere the party against whom collateral estoppel is sought to be invoked has appeared in the prior action or proceedingand has, by deliberate (Continued. I . ) Article Sixth states, in pertinent part, The City will permit the Owner, at the costs and expense of the Owner to construct and maintain entrances between the Premises and the Approach (hereinafter referred to as Entrances ). 9, I . .. Page 4 of 5 [* 5] r Y Windley v City of New York, Index No. I0018212005 - action, refusedto defend or litigatethe chargeor allegationthat i s the subject of the preclusion request. (Matter of Abady, 22 AD3d 71, 83-84 [let 20053; Academic Health Dept Professionals lns. Assn v Lester, 30 AD3d 328,329 [Ist 20061.) Dept Here, collateral estoppel does not apply becausethis CoUrt s decision in Sanchezwasgranted on default, and therefore the issue of the ownershipof stairway 02A was not a matter actually litigated. The limited exception recognized in Matter ofAbady does not apply here, because Broadway Associates has not offered any evidencefrom the record in Sanchezto show that NYCTAfailed to oppose its motion in Sanchez because it willfully and deliberately refuse[d] to participate in those litigation proceedings, or abandon[ed] them, despke a full or fair opportunity to do so. (Matter of Abady, 22 AD3d at 85.) Moreover, the determinationthat BroadwayAssociates did not own staircase 02-A was not a determination rendered against NYCTA Thus, Sanchez does not appear to be the situation where NYCTAwillfully abandoned the litigation in the hopes of avolding or minimizing the repercussions of adverse determinatlona. Therefore, NYCTA s motionto vacate the decision and order dated May 20, 2011, and entered May 26, 2011, is granted. NYCTA is granted the opportunlty to oppoge BroadwayAssociates s previous motion for summary judgment, which is hereby restored and recalendared. Copies to counsel. Dated: //E New York, New York I. Check one: ................................................................ MOTION IS: Ll CASE DISPOSED 3. Check If appropriate: ................................................ 0SETTLE ORDER 0DO NOT POST 2. Check If approprlate:............................ GRANTED Page 5 of 5 a NON-FINAL DISPOSITION 0GRANTED IN PART 0OTHER 0SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE DENIED

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.