Nunez v. City of New York

Nunez v City of New York 2024 NY Slip Op 31018(U) March 13, 2024 Supreme Court, New York County Docket Number: Index No. 117678/2009 Judge: Denise M. Dominguez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

INDEX NO. 117678/2009 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/27/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ 35 ------------- - -PRESENT: - -Justice ------------------------------------------------- -------------------------------- X INDEX NO. l 17678/2009 ROBERTI A NUNEZ MOTION SEQ. NO. 003 Plaintiff, - V - DECISION + ORDER 0 THE CITY OF NEW YORK , NEW YORK CITY MOTION DEPA RTM ENT OF ENVIRO MENTAL PROTECTTO Defendants ---------------------------------------------------------------------------------X THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF ENV IRON MENTAL PROTECTION Third-Party Index No. 595907/2021 Third- Party Plaintiffs, -v- CONSOLIDATED EDISON COMP A Y OF NEW YORK, INC. Third Party Defendants. --------------------------------------------------------------------------------X CONSOLIDATED EDISON COMPA NY OF NEW YORK, I C.

Second Third- Party Plaintiffs, -v- EW YORK CITY TRANS IT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORJTY Second Third Party Defendants. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 43, 44, 45 , 46, 47, 48, 49, 50, , 52, 53, 54, 55,56, 57,58, 59, 60,61,62, 63 , 64, 65 were read on this motion to/for DISMISS

For the reasons that fo ll ow, Second Third Party Defendants, NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORJTY's (Transi t) motion to dismiss the Second Third Party Complaint is granted.

117678/2009 ROBE RTINA NUNEZ vs. CITY OF NEW YORK Page 1 of 5 Motion No. 003

[* 1] 1 of 5 INDEX NO. 117678/2009 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/27/2024

Background and Procedural History This personal injury matter arises out of a December 24, 2008 incident wherein Plaintiff ROB ER TINA NUNEZ, alleges that she fell due to a defective sidewalk/curb condition near a bus stop at 3397 Broadway in Manhattan (NYSCEF Doc. 44).

On or about December 17, 2009, Plaintiff's commenced this action by filing the summons and complaint against Defendants, the CITY OF EW YORK (City), NEW YORK CITY DEPARTME T OF ENVIRO MENTAL PROTECTION (DEP) and TRANSIT YSCEF Doc. 42).

Nearly seven year later, a request for a Preliminary Conference with the court was filed on October 7, 2016 and the conference was held on December 7, 2016 YSCEF Doc. 42). Counsels during oral arguments before this Court did not explain such delay . The Court however notes that this matter was not deemed abandoned. Nor was any motion filed by Defendants to dismiss for failure to prosecute. Further, it was not until August 13, 2020 that part of the papers in the action were converted to electronic filing.

By Decision and Order by Sokoloff J, dated September 28, 2017, Tran sit's summary judgment motion was granted. Therein, it was he ld that TRANSIT had established its prima facie burden in showing that it did not own, operate, maintain, manage or control the area where the accident allegedly occurred. In support, Transit submitted an affidavit from one of it arch itects, attesting that based upon a search of it records, and a review of Plaintifrs notice of claim, including the photograph annexed to same, TRANS IT did not own, maintain, operate or control the sidewalk/curb in front of 3397 Broadway , the alleged accident location (NYSCEF Doc. 47). The decision was not appealed.

On March I, 2021, over I I years after this matter was commenced, over four years after the Preliminary Conference was held, and nearly three and a half years after TRANSIT was dismissed from the action, Defendants CITY and DEP commenced a third-party action against

11767812009 ROBERTINA NUNEZ vs. CI TY OF NEW YORK Page 2 of s Motion No. 003

[* 2] 2 of 5 INDEX NO. 117678/2009 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/27/2024

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. (CON ED) for contribution, common-law indemnification, and contractual indemnification (NYSCEF Doc. 4).

Third Party Defendant, CON ED then on October 5, 2021, commenced a Second Third-Party action against TRANSIT seeking contribution and common-law indemnification on the basis that TRANSIT was negligent in properly maintaining a manhole cover (NYSCEF Doc. 12).

TRANSIT then timely moved to dismiss (Motion Seq. 2). Following oral arguments on Motion Seq. 2, the motion was denied with leave to refile upon all pleadings, motion papers and orders being fully converted to e-filing.

TRANSIT now again in Motion Seq. 3 moves by notice of motion to dismiss the Second Third- Party Compliant pursuant to CPLR 3211 (a)(7) for failure to state a cause of action and pursuant to 3211 (a)(5) based upon res_judicata. Con Ed and Plainti rr oppose.

Discussion In deciding a motion to dismiss for a failure to state a cause of action pursuant to CPLR l l(a)(7), initially, the sole criteria to consider is whether the pleading state a cause of action, and if from its four corners factual allegations arc discerned which taken together manifest any cause of action cognizable at law (Cuggenheimer v. Ginzburg, 43 NY2d 268 [ 1977]; Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Co., Inc., 37 NY3d 169 [2021]; Leon v. Martinez, 84 NY2d 83 l1994]). Further, when evidentiary material is considered, the criteria is whether the proponent of the pleading has a cause of action, not whether he has stated one (Guggenheimer).

Here, Con ED's third Party Action against TRANSIT is based not on Plaintiff's theory that TRANSIT was negligent based on ownership and maintaining the sidewalk but rather on the basis that TRANSIT was negligent in properly maintaining a manhole cover.

Upon review of the court file, a defective manhole theory as to the cause of Plaintifrs accident emerges for the first time, after over 11 years of Iitigat ion in Plaintiffs June 24, 2021 bill of particulars

117678/2009 ROB ERTi NA NU NEZ vs. CITY OF NEW YORK Page 3 of 5 Motion No. 003

3 of 5 [* 3] INDEX NO. 117678/2009 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/27/2024

(NYSCEF Doc. 34). Significantly, no transcript, affidavit or marked photo was submitted showing that the condition which caused Plaintiff to trip and fall concerned a manhole cover or was adjacent to a manhole cover or otherwise involved a manhole cover.

Further based on Plaintiffs notice or claim (NYSCEF Doc. 45), complaint (NYSCEF Doc.

42) and Plaintiff's initial October 7, 2016 bill of particulars (NYSCEF Doc. 42), she allegedly suffered injuries due to tripping and falling on a dangerous condition on the sidev.-·alk/curb that consisted or a broken, raised, depressed trap-like condition with missing pieces and imbeddcd snow and ice as she walked along the sidewalk near 3397 Broadway. Also, Plaintiffs claims against TRANS IT were based on negligence of its ownership, operation, management, maintenance and control of the sidewalk/curb.

Accordingly, even giving CON ED and Plaintiff the most favorable inferences and accepting their affidavits that TRANSIT may have owned the alleged manhole cover on the date of Plaintiffs alleged accident, there is no credible evidence showing that Plaintifrs accident was caused by any defective in the manhole (see Guggenheimer, 43 NY2d 268; Leon, 84 "\"Y2d 83).

Thus, as CON ED's contribution and common-law indemnification claims hinge on TRANSIT's alleged negligence, and as TRANSIT cannot be found negligent as TRANSIT did not own, operate, maintain, manage or control the sidewalk and curb where this accident occurred, and as it is pure speculation to assert TRANSIT owned and/or controlled a manhole cover which may have been involved in Plaintiffs accident, any viable causes of action against TRANSIT fai!.

As this Court has found that CON ED cannot substantiate a cause of action for contribution or common law indemnification premises upon TRANSIT's negligence, dismissal pursuant to CPLR l (a)(7) is warranted. Further this Court does not reach the branch of TRANSIT' s motion seeking dismissal pursuant to CPLR 3211 (a)(5).

It is hereby

11767812009 ROBERTI NA NUNEZ vs. CITY OF NEW YORK Page 4 of 5 Motion No. 003

[* 4] 4 of 5 INDEX NO. 117678/2009 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 03/27/2024

ORDERED that Defendants NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORlTY's motion to dismiss the Second Third-Party complaint is granted; and it is further ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further ORDERED that counsel for Defendants NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORITY shall serve a copy of this order with notice of entry upon all parties within 30 days, and upon the Clerk of the Court and the Clerk of the General Clerk's Office, who are directed to mark the court's records to reflect the change in the caption herein; and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for /<;/ectronicaily Filed Cases (accessible at the "E-Filing" page on the court's website).

3!1312024 ) DATE DENISE M DOMINGUEZ, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED □ DENJED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE 11767612009 ROBERTINA NUNEZ vs. CITY OF NEW YORK Page 5 of 5 Motion No. 003

[* 5] 5 of 5