Metro-North Commuter R.R., Co. v Empire City
Subway Co. (Ltd.)
2012 NY Slip Op 31052(U)
April 16, 2012
Sup Ct, NY County
Docket Number: 403103/2006
Judge: Saliann Scarpulla
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
Index Number : 403103/2006
METRO-NORTH COMMUTER RAILROAD
EMPIRE CITY SUBWAY
SEQUENCE NUMBER : 003
MOTION SEQ. NO.
, were read on thls motlon toifor
The followlng papsn, numbered 1 to
Notlee of MotIonlOrder to Show Cause
-Affldavlts - Exhlblta
Upon the foregolng papem, It Is ordered that thls motlon I
MOTION I :
dt cdd LhC ( 1 / c w . C [,<
GRANTED IN PART
c SUBMIT ORDER
0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE
P 1aint i ffs,
Index No.: 403 103/2006
Submission Date: 01/11/2012
- againstEMPIRE CITY SUBWAY COMPANY (LIMITED),
Seth J. Cummins
Metro-North Commuter Railroad Co.
347 Madison Ave.
New York, NY 10017
Conway, Farrell, Curtin & Kelly, P.C.
48 Wall Street
New York, NY 10005
Papers considered in review of this motion for summary judgment:
Notice of Motion . . . . . . . . . . . . . 1
Mem of Law in Support. . . . . . . . 2
Aff in Opposition. . . . . . . . . . . . 3
Reply Affirmation . . . . . . . . . . . .4
Notice of ECS’s Motion. . . . . . . .5
Aff in Support. . . . . . . . . . . . . .. 6
Aff in Opposition. . . . . . . . . . . . . 7
Reply Aff . . . . . . . . . . . . . . . . . . . 8
COUNTY CLERK’S OFFICE
HON. SALIANN SCARPULLA, J.:
In this declaratory judgment action, plaintiffs Metro-North Commuter Railroad
Company (“Metro-North”) and the Metropolitan Transportation Authority (“MTA”)
(collectively “plaintiffs”) move for an order granting summary judgment and declaring
that (1) defendant Empire City Subway Company (Limited) (“ECS”) is responsible for
repairing and maintaining certain vauks above plaintiffs’ railroad, and must promptly act
to safeguard the vaults or reimburse plaintiffs for the cost to repair the vaults; and that (2)
ECS must reimburse plaintiffs for the costs to date, totaling $59,090, ofrepairing one of
the vaults (motion sequence no. 4). ECS moves separately for summary judgment
dismissing the complaint (motion sequence no.3). Motion sequence nos. 3 and 4 are
consolidated for disposition.
MTA leases the property encompassing the Grand Central Terminal (“GCT”) and
related property from non-parties Midtown Trackage Ventures LLC and the Owasco
River Railway Inc. pursuant to a lease agreement dated April 8, 1994. Under its lease
agreement, MTA is responsible for maintaining GCT and making structural repairs of
pipes, mains and vaults
. . which a utility company is not obligated to repair and
Metro-North, MTA’s subsidiary, manages GCT for the operation of its commuter
railroad. Originally, the railroad tracks were above-ground. In 1903, the City of New
York granted Metro-North’s predecessor railroad the right to build depressed tracks at
GCT’s current location. Under the Laws of 1903, the predecessor railroad could relocate
and change, at the railroad’s expense, all ducts or conduits around GCT “in such manner
and to such an extent as may be necessary or reasonably required” to build the tracks.
ECS is a telecommunications utility and the franchise holder from the City of New
York for underground telecommunications conduits in the Manhattan roadways. Under
its 189 1 franchise agreement with the City of New York, ECS is required “to provide,
build, equip, maintain and operate” its underground vaults. Telecommunications and
cable companies then pay ECS rental fees for the use of conduit spaces in ECS’s vaults.
In August 2003, a utility vault above a GCT train shed collapsed, causing concrete
and debris to fall onto the train platforin. Following the vault’s collapse, plaintiffs
retained engineering firm Parsons Brinckerhoff Quade & Douglas, lnc. (“PB”) to identify
and locate all utility vaults above the train shed. Of the thirty vaults found above the train
shed, eighteen were similar in construction to the one that collapsed. Three of these
eighteen vaults had covers with “ECS” imprinted on them (the “subject vaults”).
On January 27, 2007, Harry Hall (“Hall”), a Senior Engineer with Metro-North,
and an ECS representative conducted a field inspection of the subject vaults. Hall attests
that during the inspection, the ECS representative opened the subject vaults from the
street by removing the covers. Plaintiffs maintain that they do not have access to the
interior of the subject vaults.
Thereafter, Metro-North installed emergency temporary timber and steel shoring
on one of the subject vaults. According to Julio Valzevan (“Valzevan”), a Senior
Supervising Structural Engineer with PB, two of the subject vaults require a permanent
external support system to avoid collapse. Plaintiffs demanded that ECS reimburse them
for the cost of the emergency repairs to the first subject vault, and that ECS pay for the
repairs to the remaining subject vaults. ECS refused.
Plaintiffs commenced this action in January 2007- to recover their costs in repairing
the subject vaults. Plaintiffs plead various theories of recovery, including restitution,
unjust enrichment, implied contract, quantum meruit and negligence. Plaintiffs also seek
a declaratory judgment that ECS is obligated to maintain and repair the subject vaults, or
to reimburse plaintiffs for maintaining and repairing the subject vaults. In its answer,
ECS denies any obligation for the maintenance of the subject vaults.
Kevin Keogh (“Keogh”), an ECS Area Operations Manager, testified at his
deposition that the ECS imprint like the one found on the subject vaults indicates that
ECS owns the vault. Moreover, In an email dated April 1,2008, John Joseph Curley
(“Cur1ey”)of ECS stated that ECS was responsible for maintaining the vaults.
In contrast, in support of ECS’s dismissal motion, Calvin Gordon (“Gordon”), a
Specialist with ECS, submits a two page affidavit in which he attests that GCT’s owner
built the subject vaults and “is responsible if the vault‘s require any structural repair or
reconstruction alleged by Metro North.” According to Gordon, he based his conclusions
on records and emails the plaintiffs and ECS exchanged, but does not specify which
ernails or records.
Plaintiffs now move for summary judgment, arguing that ECS has admitted
ownership and maintenance responsibility for the subject vaults. Plaintiffs further argue
that ECS is obligated under its franchise agreement with the City to maintain the subject
In opposition and in support of its motion to dismiss, ECS maintains that plaintiffs
are responsible for repairing the subject vaults under their GCT lease and The Laws of
1903. ECS further contends that plaintiffs have failed conclusively to establish that ECS
owns the vaults, or that the vaults require external support systems. ECS admits that it
maintains the interior of the subject vaults, but argues that it is not responsible for
installing external support systems.
ECS argues that the Court should dismiss the unjust enrichment, restitution, and
quantum meruit causes of action because plaintiffs did not perform the repairs at ECS’s
behest. ECS contends that the implied contract cause of action should be dismissed
because the facts do not establish that there was a meeting of the minds between plaintiffs
and ECS. ECS further argues that all of plaintiffs’ alleged damages are prospective, thus
plaintiffs cannot maintain a negligence cause of action. Lastly, ECS maintains that
plaintiffs iack standing to recover from ECS because plaintiffs never contracted with
ECS, nor were they third-party beneficiaries of a contract between ECS and another party.
As an initial matter, ECS’s argument that plaintiffs lack standing to bring this
action is meritless, as ECS waived this affirmative defense by failing to raise it in its
answer or pre-answer motion to dismiss. See Country Pointe ut Dix hills Home Owners
Association, Inc. v. Beechwood Organization, 80 A.D.3d 643, 65 1 (2d Dept. 20 1 I). The
Court will therefore address on the merits the parties’ respective surnmaEy judgment
A movant seeking summary judgment must make aprima facie showing of
entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any
material issues of fact. Winegrad v. New York Univ.
Med. Ctr., 64 N.Y.2d 85 1, 853
(1985). Once a showing has been made, the burden shifts to the opposing party, who
must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp.,
68 N.Y.2d 320,324 (1 986); Zuckerrnan v, Ct oflvew York, 49 N.Y.2d 557 (1 980).
Here, plaintiffs have made aprima facie showing of entitlement to a declaratory
judgment that ECS is responsible for repairing and maintaining the subject vaults. ECS
does not contest that its logo was imprinted on the covers of the subject vaults, which
Keogh testified indicates that ECS owns the vaults.’ Hall attests that the ECS
representative was able to open the subject vaults during their inspection on January 27,
2007. Moreover, ECS admits in its opposition papers that it has an ownership interest in
the subject vaults.
‘While ECS argues that Keogh’s testimony does not bind ECS, the Court finds that
Keogh testified as ECS’s representative, thus his deposition may be used as evidence-inchief. See CPLR 8 3 117(a)(2).
ECS also seeks to impeach its own witness’s testimony, claiming that Keogh’s
testimony is unreliable because he did not have personal knowledge of the subject vaults
or directly oversee Manhattan construction activities. However, Keogh’s testimony
relates to all of ECS’s vaults, not specifically the subject vaults. Thus, his lack of
personal knowledge as to the subject vaults is irrelevant.
Further, plaintiffs are-not required under their lease to repair vaults that an outside
utility company is obligated to repair and maintain, and ECS’s franchise agreement with
the City of New York states that ECS is responsible for maintaining its vaults.’ ECS
argues that its maintenance responsibilities do not extend to making external repairs to the
vaults. However, ECS concedes that it maintains the subject vaults’ interior, and
Valzevan attests that the repairs are needed because of deterioration inside the subject
Though Gordon concludes that GCT’s owner is responsible for repairs to the
subject vaults, he does not provide the specific basis for his conclusion. Further, Gordon
does not refute that repairs are needed because of the subject vaults’ interior deterioration.
Accordingly, Gordon’s affidavit is insufficient to raise a triable issue of fact. See P. D. J
Corp. v. Bansh Properties, Inc., 29 A.D.2d 927, 928 (1968).3
Moreover, plaintiffs are entitled to restitution for their costs to date in repairing the
vaults. Where a plaintiff fulfills a defendant’s duty LLbecause
there was an immediate
necessity to protect public decency, health or safety, ” that plaintiff is entitled to
2ECS contends that the Franchise Agreement applies only to facilities ECS built on
public property. However, ECS does not cite to any section in the Agreement, nor any
other authority, that includes this limitation.
3TheCourt rejects ECS’s argument that it is not responsible for external structural
repairs because it does not have access to the train shed. Hall attests, and ECS does not
contest, that plaintiffs have previously granted ECS access to the train shed to perform
restitution for the expenses in fulfilling the duty. City o New York v. Lead Indus. Ass 'TI, f
222 A.D.2d 119, 125 (lSt
As stated above, it was ECS's duty to maintain the interior subject vaults interior,
the deterioration of which necessitated the repairs. Further ECS does not present any
credible evidence to rebut Valzevan's attestation that the temporary shoring was
necessary to prevent another vault collapse, or that another collapse would endanger
commuters using the GCT platform. The Court thus finds that ECS must reimburse
plaintiffs for their costs to date of repairing the subject vaults.5
In accordance with the foregoing, it is hereby
ORDERED that the motion for summary judgment by plaintiffs Metro-North
Commuter Railroad Company and the Metropolitan Transportation Authority is granted;
and it is further
4ECS argues plaintiffs have failed to show an unjust enrichment and thus are not
entitled to restitution. See Slater v. GuK M & 0.R. Co., 307 N.Y. 419,421 (1954).
However, unjust enrichment is not a predicate to recovery through restitution. See Ct of
New York, 222 A.D.2d at 127-28 (holding that plaintiffs stated a viable cause of action for
restitution against defendants where plaintiffs incurred costs to abate lead hazards arising
from the use of lead paint defendants manufactured).
'Because the Court finds that plaintiffs are entitled to restitution for their expenses,
it does not address whether plaintiffs may recover under unjust enrichment, quantum
meruit, implied contract or negligence theories.
ORDERED that the summary judgment motion by defendant Empire City Subway
Company (Limited) is denied.
Settle judgment on notice.
Dated: New York, New York
COUNTY CLERK'S OFFICE