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
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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
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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 âBroadway Dikeman
Building Corporation,â the building owner, and the City of New York,
âBroadway Dikemanâ 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
Associatesâs motionfor summaryjudgment on default, stating, âMovants [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
Associatesâs 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,
âMovant 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.â
Pursuantto CPLR 5015, NYCTA now moves (Motion Seq. No. 007)to
vacate the Courtâs prior decision granting BroadwayAssociateâs motion for
summary judgment (Motion Seq. No. 006), contending that it did not timely
oppose BroadwayAssociatesâ 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.
NYCTAâs 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 NYCTAâs 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 âFirstâ states, in pertinent part:
âThe Owner [Broadway-Dyckman BuildingCorporationâ 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 âApproachâ) 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
.,)
-
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t
c
Windley v City of New Yo&, Index No. I0018212005
-
(Coffey Affirm., Ex C.) Article âEighthââ states, in pertinent part,
âThe Owner covenants with the City, that whenever the Entrances
providedfor in Article Sixthâ 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 repaifâ
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 BroadwayAssociatesâs argument, NYCTA i not collaterally
estopped from assertingthat BroadwayAssociates, the purportedsuccessorin-Interestto Broadway-Dyckman BuildingCorporation,owns stairway 02-A,
notwithstanding this Courtâs decision in Sanchez vNew York Clfy Transit
Authority.
-.
âUnder 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 âSixthâ states, in pertinent part, âThe 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 âEntrancesâ). 9,
I
. ..
Page 4 of 5
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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.â
(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 CoUrtâs 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 âwillfully and
deliberately refuse[d] to participate in those litigation proceedings, or
abandon[ed] them, despke a full or fair opportunity to do so.â (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, NYCTAâs motionto vacate the decision and order dated May
20, 2011, and entered May 26, 2011, is granted. NYCTA is granted the
opportunlty to oppoge BroadwayAssociatesâs previous motion for summary
judgment, which is hereby restored and recalendared.
â
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
