Preview
FILED: KINGS COUNTY CLERK 06/15/2016 01:30 PM INDEX NO. 508360/2013
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 06/15/2016
SUPREME COURT OF THE STATE OF NEW YORK
COLINTY OF KINGS
X Index No.: 50836012013
EMILY FIERO,
Plaintiff, AFFIRMATION IN SUPPORT
-against-
CITY OF NEW YORK, METROPOLITAN
TRANSPORTATION AUTHORITY, NEW YORK CITY
TRANSIT AUTHORITY dlbla MTA NEW YORK CITY
TRANSIT and SON CLAIRE REALTY, LLC,
Defendants
X
LARRY M. SHAW, an attorney duly admitted to practice law before the Courts of the
State of New York, hereby affirms the following to be true under the penalties of perjury
pursuant to CPLR $ 2016:
1. I am a member of Milber Makris Plousadis & Seiden, LLP, attorneys for
defendant SON CLAIRE REALTY, LLC and as such, I am fully familiar with the facts and
circumstances heretofore had herein.
2. I submit this afhrmation in support of the within motion which seeks an Order
pursuant to CPLR S 3212, granting summary judgment to SON CLAIRE, dismissing plaintiff s
Verified Complaint and all cross-claims, and for such other and further relief as this Court may
deem just and proper.
PRELIMINARY STATEMENT
3. This action is for personal injuries claimed by plaintiff EMILY FIERO as a result
of an accident that allegedly occurred on a pedestrian sidewalk on June 16, 2013. Plaintiff
claims that she fell through a "dislodged sidewalk subway grate" located adjacent to the premises
at 232-238 Smith Street alkla 6l Douglass Street, Brooklyn, New York, causing her to fall into
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the subway airshaft below. In sum and substance, plaintiff alleges that SON CLAIRE was
negligent in erecting a fence that encroached upon the sidewalk adjacent to the premises,
allegedly "channeling" pedestrian traffic toward the defective subway grale. (It should be noted
that SON CLAIRE did not create the defective condition, namely the dislodged sidewalk subway
grate, that allegedly caused injury to the plaintiff.)
4. It is respectfully submitted, however, that SON CLAIRE is entitled to summary
judgment because any negligence purportedly attributable to SON CLAIRE cannot - as a
matter of law - be a proximate cause of this accident.
5. As discussed more fully below, the Appellate Division, Second Department has
held that liabilify may not be imposed on a party whose alleged negligence merely furnishes the
condition or occasion for the occurrence of an event but was not the proximate cause of the
accident.
6. As discussed herein, the fence was not and could not have been the proximate
cause of plaintiff s accident because plaintiff admittedly did not alter her path of travel as a
result of the subject fence. While the subject fence may or may not have furnished an occasion
for the accident, plaintiff never deviated from the direction she was traveling on the sidewalk
(which was straight toward the open subway grate), on account of the subject fence or otherwise.
Thus, the fence was clearly not a substantial factor in causing plaintiffs accident, and
therefore, could not have been a proximate cause of same.
7. Furthermore, the record clearly establishes that the sole cause of this accident
was plaintiffs own failure to see that which she should have seen. Plaintiff was admittedly
looking behind her, talking to friends, in the time leading up to the accident, so she never saw the
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dislodged subway grate, irrespective of the fact that there was nothing to obstruct her view of
same.
8. Accordingly, the within motion should be granted in favor of SON CLAIRE,
dismissing plaintiffls Verified Complaint and all cross-claims.
PROCEDURAL HISTORY
9. This action was commenced against SON CLAIRE and co-defendants CITY OF
NEW YORK, METROPOLITAN TRANSPORTATION AUTHORITY, and NEV/ YORK
CITY TRANSIT AUTHORITY dibla MTA NEW YORK CITY TRANSIT by the electronic
frling of a Summons and Verihed Complaint dated December 30,2013. Copies of the Summons
and Verified Complaint are annexed collectively hereto as Exhibit "4."
10. Subsequently, defendants CITY OF NEW YORK, METROPOLITAN
TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY d|b|a MTA
NEW YORK CITY TRANSIT, and SON CLAIRE interposed their respective Answets,
collectively annexed hereto as Exhibit "B."
11. On or about November 25,2014, plaintiff served a Verified Bill of Particulars
with respect to SON CLAIRE, dated November 25,2014, a copy of which is annexed hereto as
Exhibit "C."
12. Plaintiff has provided deposition testimony in connection with this action. Copies
of the transcript from plaintiff s February 23,2015 deposition and errata sheets are collectively
annexed hereto as Exhibit "D."
13. The Note of Issue has not yet been filed in this action. Pursuant to the Order
dated April 12,2016, issued by Honorable Martin Schneier, JHO, plaintifls time to file the Note
of Issue has been extended to September 30, 2016. A copy of the order is annexed hereto as
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Exhibit "E." Because this motion for summary judgment is made in advance of the filing of the
Note of Issue and the 120-day period allotted thereafter pursuant to CPLR ç 3212, this motion is
timely made.
OF'F'ACTS
14. In the Verihed Complaint, plaintiff alleges that the accident at issue occurred on
June 16, 2013 at the subject premises, more particularly, when she inexplicably failed to see and
fell through a "dislodged sidewalk subway grate" and into the airshaft below.
15. At the time of plaintifls accident, SON CLAIRE was the owner of the vacant
commercial property located at 232-238 Smith Street alkla 6l Douglass Street, Brooklyn, New
York, which abuts the subject sidewalk where the accident allegedly occurred.
16. As reflected in the affidavits submitted in support of SON CLAIRE's request to
interpose an Answer and in opposition to Plaintiffs motion for a default judgment, "SON
CLAIRE has never owned nor has ever been responsible to maintain, control and/or inspect the
subway grates at fthe subject] location. SON CLAIRE also did not touch, modify, alter or repair
the sidewalk subway grate at any time that allegedly caused plaintifls injury. Thus, SON
CLAIRE did not create the defective condition [the dislodged sidewalk subway grate] that
allegedly caused injury to the plaintiff." Copies of the supporting affrdavits signed by Claire
Palermo a/kla Claire Barbuto and Vincent Barbuto dated June 16, 2014 are collectively annexed
hereto as Exhibit'rF."
l7 As reflected in the transcript from plaintiff s deposition, in the time leading up to
the accident, plaintiff had consumed a few alcoholic beverages; in fact, plaintiff was at aparty at
((D" at 12-14, 54-56.
a friend's house immediately prior to the accident. See Exhibit
4
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18. At or around 1:30 a.m., plaintiff left her friend's house with approximately seven
other acquaintances to walk to a restaurant for alate night snack. See Exhibit "D" at20,54,56.
Beginning from Third Street, they started toward Smith Street where they made a right turn to
head north. See Exhibit '(D)' at 15, 57 . From that point until the place of the accident, plaintiff
and the seven individuals walked approximately five blocks on Smith Street, during which time
plaintiff and her friends at some point crossed from the east side to the west side where the
accident eventually occurred. See Exhibit r6D" at27,58.
19. Plaintiff testified that leading up to the time of the accident, the position of the
individual walking next to her (Evan) did not change, which sets the stage for the fact that
plaintiff did not alter her path of travel due to the fence:
a Right before the accident took place, what was the position of the
people that you were with, were you walking in a pack or all
spread out?
A I was walking on the right and then my friend Evan was right
next to me on my left. And then prior to the fall, there was I
know Aaron, Zach and Gabe behind me and then there was another
group of people behind them.
a So Evan was walking adjacent to you?
A Yes.
See Exhibit '(D" at 17 (emphasis added). According to her testimony, Evan walked on the
inside, closer than her to the buildings and subject fence that were lining their path of travel. See
Exhibit ßD" at 59.
20. Plaintiff further testihed that she never left the sidewalk except to cross the street
and that up until the time of the accident, she was generally on the right hand side of the group
and the roadway was to her right:
a At some point you got on the sidewalk and you were walking next
to the roadway of Smith Street?
A Yes,
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a From the time you were on the west side of Smith Street up until
the time that the accident occuned, was the roadway to your left or
right?
A To my right.
a As you were walking on the west side of Smith, from the time you
first got on the west side of Smith up until let's say you were a
hundred feet from the place ofthe accident, did you ever change
your position on the sidewalk to either move closer to the
roadway or closer to the building or you generally walked
down on the same path?
A I generally was on the right-hand-side of the group. As far as how
far I was from the curb,I dontt recall.
See Exhibit (D" at 57,59,60 (emphasis added).
2L Significantly, plaintiff could not recall changing or altering her direction of
travel either closer to or farther from the curb as she walked on the sidewalk leading up to
(3D)'
the accident site. See Exhibit at 60, 6l. This is unsurprising for plaintiff could not even
recall noticing the fence at any time prior to the accident, acknowledging the existence of the
subject fence, or thinking that she along with the group should "move over":
a At the time when you were walking, were you avvare of the
barrier?
A I don't recall.
a You don't recall if it was there at the time?
A I don't recall acknowledging the presence. I remember my
friend and I were walking close together at that point. I don't
remember thinking there rvas a wall, let's move over.
a Did you notice it as you were walking?
A I don't remember having a conscious thought saying there was
a wall. I do know the wall exists there, I was in that area before.
See Exhibits(D" at24,6I,70 (emphasis added)
a Did you ever walk down that specific sidewalk in the area of your
accident before your accident?
A Yes.
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a Did you ever notice the construction wall that you referred to
earlier?
A It is hard to say now because I know it exists. \ilhether or not I
was aware of its exÍstence beforehand, I couldn't say.
See Exhibit '(D" at 70 (emphasis added).
22. Additionally, plaintiff testified that she could not recall what direction she was
looking immediately before her fall:
'Well,
a did you look in front of you before this accident took place?
A I can't recall what direction I was looking when I fell.
a When you were walking, at some [point] you turned your head
immediately before the accident, would that be fair to say?
A I don't recall what direction I was looking immediately before
the fall.
See Exhibit rD" at 19 and errata sheet as corrected by plaintiff (emphasis added). In fact, at
the time of the accident, the group was "walking and talking," and plaintiff remembers listening
and "looking back at [her] friend Aaron":
a 'What happened?
A Vy'e were just walking and talking and then one minute I'm
listening to my friend talk and the next I just started falling.
a V/hen you were listening to your friends talk, where were you
looking?
A Probably around. I was looking at my friend, I remember
looking back at my friend Aaron, he was telling a story, itwas
just normal walking with a group.
a Do you normally walk with your head turned around not looking
where you are walking?
A When I'm by myself I look forward, if someone is talking, I will
look at them and sometimes look forward. I think I normally
acknowledge people when they speak to me.
See Exhibit('D" at 18 (emphasis added)
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23. Not only was plaintiff not looking where she was going in the time leading up to
the accident, but plaintiff also stated numerous times that there were no obstructions to her vision
or line of sight while she was walking toward the dislodged subway grate:
Q: Did you have any obstruction to your sight when you were walking
on Smith Street?
A: No. Other than being nighttime and dark, no obstructions that I
remember.
Q: [Were] there any lights out?
A: I don't remember.
Q: V/as it so dark out that you couldn't see?
A: Not that I noticed while I was walking.
Q: \ilas there anything blocking your view of the sidewalk from
seeing what was there to be seen?
A: Not that I could recall.
Q: What were the artificial lighting conditions like in the area that
the accident took place; was it dimly lit, pitch black, moderately
lit,brightly lit,or something else?
A: I would say standard because I didn't notice them but I can't
say.
Q: Did you have any trouble seeing ahead of you as you were
walking?
A: Not that I remember noticing.
Q: Were you able to see the sidewalk as you were walking on Smith
Street?
A: Yes.
Q: Did you have any trouble because of how dark it was?
A: Immediately in front of me, not that I noticed.
See Exhibit úrD" at 16, 17, 18, 65, 66 (emphasis added).
24. Consequently, the foregoing facts clearly establish that SON CLAIRE's purported
negligence in erecting the subject fence merely furnished the occasion for the event and nothing
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more due to: i) plaintifls failure to establish defendant's negligence was a proximate cause of
the accident; and ii) the sole proximate cause of the accident being plaintiff s own failure to see
that which she should have seen.
LEGAL ARGUMENT
POINT I
STANDARD FOR SUMMARY JUDGMENT
25. It is well established that:
[t]he proponent of a summary judgment motion must make aprima
facie showing of entitlement to judgment as a matter of law,
tendering sufficient evidence in admissible form to demonstrate the
absence of any material issues of fact. Giuffrida v. Citibank Corp.,
100 N.Y.2d 72 (2003); Alvarez v. Prospect Hosp., 68 N.Y.2d 320,
324 (1986). Once this showing has been made, the burden shifts to
the party opposing the motion to produce evidentiary proof in
admissible form sufficient to establish the existence of material
issues of fact that require atrial for resolution. Alvarez, supra,
Moore v. 3 Phase Equestrian Center. Inc., 83 A.D.3d 677,922 N.Y.S.2d98, 100 (2d Dep't
'Washington
20ll), Nash v. Port Union Free School Dist., 83 4.D.3 d 136, 922 N.Y.S .2d 408
(2d Dep'I 20ll); Sonne v. Board of Trustees of Village of Suffern, 67 A.D.3d 192, 887
N.Y.S.2d 145 (2d Dep't 2009); Santos v. City of New York, 15 A.D.3d 564,789 N.Y.S.2d 735,
736 (2d Dep't 2005); CAB Associates v. State of New York, 14 A.D.3d 639,789 N.Y.S.2d 311
(2d Dep't 2005); South Nassau Communities Hospital v. Allstate Insurance Compan]', 12
A.D.3d 357,783 N.Y.S.2d 312 (2d Dep't 2004).
26. Summary judgment is designed to expedite all civil cases by eliminating from the
trial calendar claims which can be properly resolved as a matter of law. Andre v. Pomeroy, 35
N,Y.2d 361, 362 N.Y.S.2d l3l (1974). An unfounded reluctance to employ the remedy only
serves to swell trial calendars, to impose harsh and undue costs to defendant forced to defend
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meritless claims, and to deny to other litigants the right to have their claims properly adjudicated.
Gibbons v. Hantman, 395 N.Y.S .2d 482,58 A.D.2d 108 aff d 43 N.Y.2d 941, 403 N.Y.S.2d 895,
374 N.E.2d 1246 (1978).
27. As stated herein, movant will assume SON CLAIRE'S negligence for purposes of
this motion only. Therefore, the issue becomes whether SON CLAIRE'S purported negligence
was the proximate cause (or substantial factor) of plaintiff s accident. The issue of proximate
cause "may be decided as a matter of law where only one conclusion may be drawn from the
established facts." Riccio v. Kid Fit. Inc.,l24 A.D.3d 873,874,5 N.Y.S.3d 521, 522 (2d Dep't
2015), quoting Kalland v. Hungry Harbor Assoc.. LLC, 84 A.D.3d 889, 889, 922 N.Y.S.2d 550,
550 (2d Dep't 20ll). However, liability may not be imposed upon a party who merely
furnished the condition or occasion for the occurrence of an event, but was not one of its
causes. Littles v. Yorkshire Business Corp., 114 A.D. 3d 646, 646, 979 N.Y.S.2d 840 (Mem)
(2d Dep't 2014) (internal citations omitted) (emphasis added); see also Panico v. Key Food
Stores Co-op.. Inc. ,275 A.D.2d312,712 N.Y.S.2d 400 (2d Dep't 2000).
28. Based upon the legal arguments and supporting case law set forth herein, coupled
with plaintiffls testimony that she did not consciously recognize the existence of the subject
fence and admittedly did not alter her path of travel due to same, it is evident that plaintiff
would have walked into the alleged defect even if the fence did not exist. Indeed, the fence
had no impact on plaintiff s path of travel and thus, had nothing to do with the accident. In
actuality, it was plaintiffs own failure to see that which she should have seen that was the
sole proximate cause of her fall through the subject subway grate. In light of the foregoing,
plaintiff s testimony clearly evidences that there are no material and triable issues of fact
with respect to proximate cause. Therefore, SON CLAIRE is entitled to summary judgment,
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and the within motion to dismiss plaintiff s Verif,red Complaint and all cross-claims should be
granted.
POINT II
SUMMARY JUDGMENT SHOULD BE GRANTED WHEN A PARTY'S PURPORTED
NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF'THE ACCIDENT BUT
MERELY F'URNISHED THE OCCASION F'OR THE EVENT
29. The Appellate Division, Second Department has frequently held that liability
may not be imposed upon aparty whose alleged negligence merely furnishes the condition or
occasion for the occurrence of an event but was not the proximate cause of the accident. See
Littles, supra; Howell v. Bacc Builders. Inc., 13 4.D.3d341,342,786 N.Y.S.2d 113, 114 (2d
Dep't 2004); Saviano v. City of New York, 5 A.D.3d 581,774 N.Y.S.2d 82 (2dDept.2004); Ely
v. Pierce, 302 A.D.zd 489, 755 N.Y.S.2d 250 (2d Dep't 2003); see also Castillo v. Amjack
Leasing Corp., 84 4.D.3 d 1298,924 N.Y.S .2d 156 (2d Dep't 20ll), quoting Ely "liability may
not be imposed upon a party who merely furnishes the condition or occasion for the occurrence
of the event but is not one of its causes"; Canals v. Tilcon New York. Inc., --- N.Y.S.3d ----,
2016 WL 143737,2016 N.Y. Slip Op. 00145 (2d Dep't 2016); Roman v. Cabrera, 113 A.D.3d
541,979 N.Y.S.2d 310 (lst Dep't 2014); Saviano, supra; Remy v. City of New York, 36 A,D.3d
602,828 N.Y.S.2d 451(2d Dep't 2007); Howell, 13 A.D.3d at342,786 N.Y.S.2datll3.
'Was A
A. Plaintiffls Failure to Establish Defendant's Neslisence Proximate
Cause Of The Accident Warra
30. In Shatz v. Kutshers Country Club,247 A.D.2d 375,668 N.Y.S .2d 643 (2d Dep't
1998), a case brought before the Second Department, a country club guest was killed while
loading his bags into the back of his car parked in the country club's arrival and departure circle.
Apparently, the driver of another vehicle lost control, traversed the circle, careened off another
vehicle, and then hit the decedent. In reversing the order of the Supreme Court denying the
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country club's motion for summary judgment, the Second Department held that the plaintiffs
failure to raise a triable issue of fact that any conduct on the part of the country club was
one of the causes of the accident, rather than merely providing the occasion for the accident,
entitled the country club to summary judgment and warranted the dismissal of plaintiffs
Complaint. Shatz, supra.
31. In the instant action, there are similarly no material and triable issues of fact with
respect to proximate cause. Plaintiff s deposition testimony is not conclusory or speculative.
Plaintiff admittedly does not recall ever altering her path of travel due to the subject fence or
otherwise and, as a result, has failed to put forth any evidence showing that the presence of
the encroaching fence, negligent or otherwise, caused her to fall into a subway shaft. See
Exhibit rrD." In fact, every indication in the record points to only one conclusion that plaintiff
-
would have fallen through the subject subway grate anyway, regardless of whether the fence was
there or not.
32. To wit, plaintiff has failed to show that she was eyen consciously aware of the
subject fence's existence prior to the accident. As stated herein, plaintiff testified that she did
not recall "acknowledging the presence" or "having a conscious thought saying there was a wall"
as she was walking, nor did she remember thinking, "there [is] a wall, let's move over." See
Exhibit (D" at 24. Plaintiff aff,rrmed this position multiple times saying: i)she "did not notice
any construction sites" as she proceeded down Smith Street; ii) she did not remember "noticing
[the subject construction wall]"; iii)she could not recall whether she was aware of the existence
of the construction wall before the accident; and iv) she does not remember whether anyone else
said anything about the wall prior to the accident. See Exhibit rrD" at 16, 61, 70, 25
respectively. Obviously, if plaintiff cannot even recall noticing the allegedly encroaching
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fence at any time leading up to the accÍdent, then she cannot claim to have changed her
path of travel as a result of its existence.
33. Just as significantly, though, plaintiff has also failed to show that she changed
her position on the sidewalk as a result of the subject fence or otherwise. As stated herein,
plaintiff testified that she did not recall changing directions aI any time as she walked on the west
side of Smith Street up until the time of the accident. See ExhÍbit
((D" at 60,61. Plaintiff also
did not remember whether "the distance that [she was] from the curb change[d] at all up until the
point of the accident as [she] was walking." See Exhibit '(D" at 63. V/hile she does recall the
people in her group "converging" as they crossed over to the corner of Douglass and Smith
Streets, she was unable to testify that she, too, "converged." See Exhibit ((D" aI60.
34. Consequently, plaintifPs testimony that she did not consciously recognize the
existence of the subject fence and admittedly did not alter her path of travel due to s¿une,
evidences that plaintiff would have walked into the alleged defect even if the fence did not
exist. Indeed, the fence had no impact on plaintiff s path of travel and thus, had nothing to
do with the accident.
B. The Sole Proximate Cause Of The Accident Was Plaintiffs Failure To See
That \ilhich She Should Have Seen
35. In Lee v. D. Daniels Contracting. Ltd., 113 4.D.3d824,978 N.Y.S.2d908 (2d
Dep't 2014), a case involving a motor vehicle accident that occurred when plaintiff struck a
garbage truck parked blocking the right lane of the roadway on which he was traveling, the
Second Department held that defendants were entitled to summary judgment by presenting
evidentiary proof that the conduct of stoppingthe garbage truck in the roadway merely fumished
the condition for the accident but was not the proximate cause thereof. Lee, supra. To wit,
plaintiff testified at his deposition that he first saw the truck only a second before he hit it. Lee,
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supra. Defendants argued that they were not liable for the occurrence of the accident since
the sole proximate cause was the plaintiffs failure to see that which he should have seen,
and the Second Department agreed. Lee, supra.
36. In the instant case, plaintiff testified that there was nothing "blocking [her] view
on the sidewalk from seeing what was there to be seen." See Exhibit
(D)' at 18. She further
admitted that she did not have any trouble seeing ahead of her as she was walking, nor did she
have any trouble seeing what was immediately in front of her despite it being dark out. See
Exhibit ((D" at 66. ln other words, there were no "obstruction[s] to [her] sight when she was
walking down Smith Street," other than it being nighuime and dark, but plaintiff admits that it
was not so dark that she could not see. See Exhibit 66D' at 16, 17. In fact, she stated that the
artificial lighting conditions were standard for the City and that none of the streetlights on Smith
Street were out at the time of the accident. See Exhibit ((D" at 17
, 65.
37. V/hile plaintiff has failed to explicitly state why it is that she failed to see the open
subway grate that was clearly in front of her as she approached, the evidence proffered in the
record leads to only one logical conclusion: that plaintiff was not looking where she was going
(forward) at the time of the accident. To wit, plaintiff repeatedly testified that she does not
know which way she was looking immediately before the fall. See Exhibit 'rD' at 19,65,66.
She does, howevet, remember that she was listening and "looking back at [her] friend Aaron,"
who was walking behind her. See Exhibit "D" at 18. "'We were just walking and talking and
then one minute I'm listening to my friend talk and the next I just started falling." See Exhibit
íD" at 18. She further stated that when someone behind her is talking to her, she will normally
"look at them and [only] sometimes look forward" so as to "acknowledge people when they
speak to [her]." See Exhibit('D" at 18.
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38. In summary, plaintiff herself stated numerous times that she was not looking
forward (in the direction she was walking) in the time immediately leading up to the accident.
She further admitted that there were no obstructions that were blocking her view of the sidewalk
as she walked toward the dislodged subway grate. In light of the above, SON CLAIRE has
clearly demonstrated that the sole proximate cause of plaintiffs fall through the subject
subway grate was her own failure to see that which she should have seen.
CONCLUSION
39. It is respectfully submitted that SON CLAIRE is entitled to summary judgment,
dismissing plaintiffls Verified Complaint and all cross-claims, because any negligence
purportedly attributable to SON CLAIRE cannot - as a matter of law - be a proximate
cause of this accident.
40. It is well settled law in the Second Department that liability may not be imposed
on a party whose alleged negligence merely furnishes the condition or occasion for the
occurrence of an event but was not the proximate cause of the accident.
41. As previously discussed, the fence was not and could not have been the
proximate cause of plaintiff s accident because plaintiff admittedly did not alter her path of
travel as a result of the subject fence. While the subject fence may or may not have furnished
an occasion for the accident, plaintiff never deviated from the direction she was traveling on the
sidewalk (which was straight toward the open subway grate), on account of the subject fence or
otherwise. Thus, the fence was clearly not a substantial factor in causing plaintiffs
accident, and therefore, could not have been a proximate cause of same.
42. Furthermore, SON CLAIRE has established that the sole cause of the accident
was plaintiff s own failure to see that which she should have seen. Plaintiff was admittedly
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looking behind her, talking to friends, in the time leading up to the accident, so she never saw the
dislodged subway grate, irrespective of the fact that there was nothing to obstruct her view of
same.
43. Accordingly, based upon plaintiff s testimony and the case law discussed herein,
liability - as a matter of law - cannot be imposed upon SON CLAIRE and the within motion for
summary judgment should be granted in favor of SON CLAIRE, dismissing plaintiff s Verified
Complaint and all cross-claims
44. No prior application for the relief requested herein has been made to this Court or
any other Court.
\üHEREFORE, it is respectfully requested that this Court issue an Order: (1) granting
summary judgment to SON CLAIRE dismissing plaintiff s Verified and all cross-
claims; and (2) for such other and further relief as this Court may and proper.
Dated: Woodbury, New York
June 15,2016
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Preview
FILED: KINGS COUNTY CLERK 06/15/2016 01:30 PM INDEX NO. 508360/2013 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 06/15/2016 SUPREME COURT OF THE STATE OF NEW YORK COLINTY OF KINGS X Index No.: 50836012013 EMILY FIERO, Plaintiff, AFFIRMATION IN SUPPORT -against- CITY OF NEW YORK, METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY dlbla MTA NEW YORK CITY TRANSIT and SON CLAIRE REALTY, LLC, Defendants X LARRY M. SHAW, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury pursuant to CPLR $ 2016: 1. I am a member of Milber Makris Plousadis & Seiden, LLP, attorneys for defendant SON CLAIRE REALTY, LLC and as such, I am fully familiar with the facts and circumstances heretofore had herein. 2. I submit this afhrmation in support of the within motion which seeks an Order pursuant to CPLR S 3212, granting summary judgment to SON CLAIRE, dismissing plaintiff s Verified Complaint and all cross-claims, and for such other and further relief as this Court may deem just and proper. PRELIMINARY STATEMENT 3. This action is for personal injuries claimed by plaintiff EMILY FIERO as a result of an accident that allegedly occurred on a pedestrian sidewalk on June 16, 2013. Plaintiff claims that she fell through a "dislodged sidewalk subway grate" located adjacent to the premises at 232-238 Smith Street alkla 6l Douglass Street, Brooklyn, New York, causing her to fall into 1 of 16 the subway airshaft below. In sum and substance, plaintiff alleges that SON CLAIRE was negligent in erecting a fence that encroached upon the sidewalk adjacent to the premises, allegedly "channeling" pedestrian traffic toward the defective subway grale. (It should be noted that SON CLAIRE did not create the defective condition, namely the dislodged sidewalk subway grate, that allegedly caused injury to the plaintiff.) 4. It is respectfully submitted, however, that SON CLAIRE is entitled to summary judgment because any negligence purportedly attributable to SON CLAIRE cannot - as a matter of law - be a proximate cause of this accident. 5. As discussed more fully below, the Appellate Division, Second Department has held that liabilify may not be imposed on a party whose alleged negligence merely furnishes the condition or occasion for the occurrence of an event but was not the proximate cause of the accident. 6. As discussed herein, the fence was not and could not have been the proximate cause of plaintiff s accident because plaintiff admittedly did not alter her path of travel as a result of the subject fence. While the subject fence may or may not have furnished an occasion for the accident, plaintiff never deviated from the direction she was traveling on the sidewalk (which was straight toward the open subway grate), on account of the subject fence or otherwise. Thus, the fence was clearly not a substantial factor in causing plaintiffs accident, and therefore, could not have been a proximate cause of same. 7. Furthermore, the record clearly establishes that the sole cause of this accident was plaintiffs own failure to see that which she should have seen. Plaintiff was admittedly looking behind her, talking to friends, in the time leading up to the accident, so she never saw the 2 2 of 16 dislodged subway grate, irrespective of the fact that there was nothing to obstruct her view of same. 8. Accordingly, the within motion should be granted in favor of SON CLAIRE, dismissing plaintiffls Verified Complaint and all cross-claims. PROCEDURAL HISTORY 9. This action was commenced against SON CLAIRE and co-defendants CITY OF NEW YORK, METROPOLITAN TRANSPORTATION AUTHORITY, and NEV/ YORK CITY TRANSIT AUTHORITY dibla MTA NEW YORK CITY TRANSIT by the electronic frling of a Summons and Verihed Complaint dated December 30,2013. Copies of the Summons and Verified Complaint are annexed collectively hereto as Exhibit "4." 10. Subsequently, defendants CITY OF NEW YORK, METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY d|b|a MTA NEW YORK CITY TRANSIT, and SON CLAIRE interposed their respective Answets, collectively annexed hereto as Exhibit "B." 11. On or about November 25,2014, plaintiff served a Verified Bill of Particulars with respect to SON CLAIRE, dated November 25,2014, a copy of which is annexed hereto as Exhibit "C." 12. Plaintiff has provided deposition testimony in connection with this action. Copies of the transcript from plaintiff s February 23,2015 deposition and errata sheets are collectively annexed hereto as Exhibit "D." 13. The Note of Issue has not yet been filed in this action. Pursuant to the Order dated April 12,2016, issued by Honorable Martin Schneier, JHO, plaintifls time to file the Note of Issue has been extended to September 30, 2016. A copy of the order is annexed hereto as 3 of 16 Exhibit "E." Because this motion for summary judgment is made in advance of the filing of the Note of Issue and the 120-day period allotted thereafter pursuant to CPLR ç 3212, this motion is timely made. OF'F'ACTS 14. In the Verihed Complaint, plaintiff alleges that the accident at issue occurred on June 16, 2013 at the subject premises, more particularly, when she inexplicably failed to see and fell through a "dislodged sidewalk subway grate" and into the airshaft below. 15. At the time of plaintifls accident, SON CLAIRE was the owner of the vacant commercial property located at 232-238 Smith Street alkla 6l Douglass Street, Brooklyn, New York, which abuts the subject sidewalk where the accident allegedly occurred. 16. As reflected in the affidavits submitted in support of SON CLAIRE's request to interpose an Answer and in opposition to Plaintiffs motion for a default judgment, "SON CLAIRE has never owned nor has ever been responsible to maintain, control and/or inspect the subway grates at fthe subject] location. SON CLAIRE also did not touch, modify, alter or repair the sidewalk subway grate at any time that allegedly caused plaintifls injury. Thus, SON CLAIRE did not create the defective condition [the dislodged sidewalk subway grate] that allegedly caused injury to the plaintiff." Copies of the supporting affrdavits signed by Claire Palermo a/kla Claire Barbuto and Vincent Barbuto dated June 16, 2014 are collectively annexed hereto as Exhibit'rF." l7 As reflected in the transcript from plaintiff s deposition, in the time leading up to the accident, plaintiff had consumed a few alcoholic beverages; in fact, plaintiff was at aparty at ((D" at 12-14, 54-56. a friend's house immediately prior to the accident. See Exhibit 4 4 of 16 18. At or around 1:30 a.m., plaintiff left her friend's house with approximately seven other acquaintances to walk to a restaurant for alate night snack. See Exhibit "D" at20,54,56. Beginning from Third Street, they started toward Smith Street where they made a right turn to head north. See Exhibit '(D)' at 15, 57 . From that point until the place of the accident, plaintiff and the seven individuals walked approximately five blocks on Smith Street, during which time plaintiff and her friends at some point crossed from the east side to the west side where the accident eventually occurred. See Exhibit r6D" at27,58. 19. Plaintiff testified that leading up to the time of the accident, the position of the individual walking next to her (Evan) did not change, which sets the stage for the fact that plaintiff did not alter her path of travel due to the fence: a Right before the accident took place, what was the position of the people that you were with, were you walking in a pack or all spread out? A I was walking on the right and then my friend Evan was right next to me on my left. And then prior to the fall, there was I know Aaron, Zach and Gabe behind me and then there was another group of people behind them. a So Evan was walking adjacent to you? A Yes. See Exhibit '(D" at 17 (emphasis added). According to her testimony, Evan walked on the inside, closer than her to the buildings and subject fence that were lining their path of travel. See Exhibit ßD" at 59. 20. Plaintiff further testihed that she never left the sidewalk except to cross the street and that up until the time of the accident, she was generally on the right hand side of the group and the roadway was to her right: a At some point you got on the sidewalk and you were walking next to the roadway of Smith Street? A Yes, 5 5 of 16 a From the time you were on the west side of Smith Street up until the time that the accident occuned, was the roadway to your left or right? A To my right. a As you were walking on the west side of Smith, from the time you first got on the west side of Smith up until let's say you were a hundred feet from the place ofthe accident, did you ever change your position on the sidewalk to either move closer to the roadway or closer to the building or you generally walked down on the same path? A I generally was on the right-hand-side of the group. As far as how far I was from the curb,I dontt recall. See Exhibit (D" at 57,59,60 (emphasis added). 2L Significantly, plaintiff could not recall changing or altering her direction of travel either closer to or farther from the curb as she walked on the sidewalk leading up to (3D)' the accident site. See Exhibit at 60, 6l. This is unsurprising for plaintiff could not even recall noticing the fence at any time prior to the accident, acknowledging the existence of the subject fence, or thinking that she along with the group should "move over": a At the time when you were walking, were you avvare of the barrier? A I don't recall. a You don't recall if it was there at the time? A I don't recall acknowledging the presence. I remember my friend and I were walking close together at that point. I don't remember thinking there rvas a wall, let's move over. a Did you notice it as you were walking? A I don't remember having a conscious thought saying there was a wall. I do know the wall exists there, I was in that area before. See Exhibits(D" at24,6I,70 (emphasis added) a Did you ever walk down that specific sidewalk in the area of your accident before your accident? A Yes. 6 6 of 16 a Did you ever notice the construction wall that you referred to earlier? A It is hard to say now because I know it exists. \ilhether or not I was aware of its exÍstence beforehand, I couldn't say. See Exhibit '(D" at 70 (emphasis added). 22. Additionally, plaintiff testified that she could not recall what direction she was looking immediately before her fall: 'Well, a did you look in front of you before this accident took place? A I can't recall what direction I was looking when I fell. a When you were walking, at some [point] you turned your head immediately before the accident, would that be fair to say? A I don't recall what direction I was looking immediately before the fall. See Exhibit rD" at 19 and errata sheet as corrected by plaintiff (emphasis added). In fact, at the time of the accident, the group was "walking and talking," and plaintiff remembers listening and "looking back at [her] friend Aaron": a 'What happened? A Vy'e were just walking and talking and then one minute I'm listening to my friend talk and the next I just started falling. a V/hen you were listening to your friends talk, where were you looking? A Probably around. I was looking at my friend, I remember looking back at my friend Aaron, he was telling a story, itwas just normal walking with a group. a Do you normally walk with your head turned around not looking where you are walking? A When I'm by myself I look forward, if someone is talking, I will look at them and sometimes look forward. I think I normally acknowledge people when they speak to me. See Exhibit('D" at 18 (emphasis added) 7 7 of 16 23. Not only was plaintiff not looking where she was going in the time leading up to the accident, but plaintiff also stated numerous times that there were no obstructions to her vision or line of sight while she was walking toward the dislodged subway grate: Q: Did you have any obstruction to your sight when you were walking on Smith Street? A: No. Other than being nighttime and dark, no obstructions that I remember. Q: [Were] there any lights out? A: I don't remember. Q: V/as it so dark out that you couldn't see? A: Not that I noticed while I was walking. Q: \ilas there anything blocking your view of the sidewalk from seeing what was there to be seen? A: Not that I could recall. Q: What were the artificial lighting conditions like in the area that the accident took place; was it dimly lit, pitch black, moderately lit,brightly lit,or something else? A: I would say standard because I didn't notice them but I can't say. Q: Did you have any trouble seeing ahead of you as you were walking? A: Not that I remember noticing. Q: Were you able to see the sidewalk as you were walking on Smith Street? A: Yes. Q: Did you have any trouble because of how dark it was? A: Immediately in front of me, not that I noticed. See Exhibit úrD" at 16, 17, 18, 65, 66 (emphasis added). 24. Consequently, the foregoing facts clearly establish that SON CLAIRE's purported negligence in erecting the subject fence merely furnished the occasion for the event and nothing 8 8 of 16 more due to: i) plaintifls failure to establish defendant's negligence was a proximate cause of the accident; and ii) the sole proximate cause of the accident being plaintiff s own failure to see that which she should have seen. LEGAL ARGUMENT POINT I STANDARD FOR SUMMARY JUDGMENT 25. It is well established that: [t]he proponent of a summary judgment motion must make aprima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Giuffrida v. Citibank Corp., 100 N.Y.2d 72 (2003); Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require atrial for resolution. Alvarez, supra, Moore v. 3 Phase Equestrian Center. Inc., 83 A.D.3d 677,922 N.Y.S.2d98, 100 (2d Dep't 'Washington 20ll), Nash v. Port Union Free School Dist., 83 4.D.3 d 136, 922 N.Y.S .2d 408 (2d Dep'I 20ll); Sonne v. Board of Trustees of Village of Suffern, 67 A.D.3d 192, 887 N.Y.S.2d 145 (2d Dep't 2009); Santos v. City of New York, 15 A.D.3d 564,789 N.Y.S.2d 735, 736 (2d Dep't 2005); CAB Associates v. State of New York, 14 A.D.3d 639,789 N.Y.S.2d 311 (2d Dep't 2005); South Nassau Communities Hospital v. Allstate Insurance Compan]', 12 A.D.3d 357,783 N.Y.S.2d 312 (2d Dep't 2004). 26. Summary judgment is designed to expedite all civil cases by eliminating from the trial calendar claims which can be properly resolved as a matter of law. Andre v. Pomeroy, 35 N,Y.2d 361, 362 N.Y.S.2d l3l (1974). An unfounded reluctance to employ the remedy only serves to swell trial calendars, to impose harsh and undue costs to defendant forced to defend 9 9 of 16 meritless claims, and to deny to other litigants the right to have their claims properly adjudicated. Gibbons v. Hantman, 395 N.Y.S .2d 482,58 A.D.2d 108 aff d 43 N.Y.2d 941, 403 N.Y.S.2d 895, 374 N.E.2d 1246 (1978). 27. As stated herein, movant will assume SON CLAIRE'S negligence for purposes of this motion only. Therefore, the issue becomes whether SON CLAIRE'S purported negligence was the proximate cause (or substantial factor) of plaintiff s accident. The issue of proximate cause "may be decided as a matter of law where only one conclusion may be drawn from the established facts." Riccio v. Kid Fit. Inc.,l24 A.D.3d 873,874,5 N.Y.S.3d 521, 522 (2d Dep't 2015), quoting Kalland v. Hungry Harbor Assoc.. LLC, 84 A.D.3d 889, 889, 922 N.Y.S.2d 550, 550 (2d Dep't 20ll). However, liability may not be imposed upon a party who merely furnished the condition or occasion for the occurrence of an event, but was not one of its causes. Littles v. Yorkshire Business Corp., 114 A.D. 3d 646, 646, 979 N.Y.S.2d 840 (Mem) (2d Dep't 2014) (internal citations omitted) (emphasis added); see also Panico v. Key Food Stores Co-op.. Inc. ,275 A.D.2d312,712 N.Y.S.2d 400 (2d Dep't 2000). 28. Based upon the legal arguments and supporting case law set forth herein, coupled with plaintiffls testimony that she did not consciously recognize the existence of the subject fence and admittedly did not alter her path of travel due to same, it is evident that plaintiff would have walked into the alleged defect even if the fence did not exist. Indeed, the fence had no impact on plaintiff s path of travel and thus, had nothing to do with the accident. In actuality, it was plaintiffs own failure to see that which she should have seen that was the sole proximate cause of her fall through the subject subway grate. In light of the foregoing, plaintiff s testimony clearly evidences that there are no material and triable issues of fact with respect to proximate cause. Therefore, SON CLAIRE is entitled to summary judgment, 10 10 of 16 and the within motion to dismiss plaintiff s Verif,red Complaint and all cross-claims should be granted. POINT II SUMMARY JUDGMENT SHOULD BE GRANTED WHEN A PARTY'S PURPORTED NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF'THE ACCIDENT BUT MERELY F'URNISHED THE OCCASION F'OR THE EVENT 29. The Appellate Division, Second Department has frequently held that liability may not be imposed upon aparty whose alleged negligence merely furnishes the condition or occasion for the occurrence of an event but was not the proximate cause of the accident. See Littles, supra; Howell v. Bacc Builders. Inc., 13 4.D.3d341,342,786 N.Y.S.2d 113, 114 (2d Dep't 2004); Saviano v. City of New York, 5 A.D.3d 581,774 N.Y.S.2d 82 (2dDept.2004); Ely v. Pierce, 302 A.D.zd 489, 755 N.Y.S.2d 250 (2d Dep't 2003); see also Castillo v. Amjack Leasing Corp., 84 4.D.3 d 1298,924 N.Y.S .2d 156 (2d Dep't 20ll), quoting Ely "liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes"; Canals v. Tilcon New York. Inc., --- N.Y.S.3d ----, 2016 WL 143737,2016 N.Y. Slip Op. 00145 (2d Dep't 2016); Roman v. Cabrera, 113 A.D.3d 541,979 N.Y.S.2d 310 (lst Dep't 2014); Saviano, supra; Remy v. City of New York, 36 A,D.3d 602,828 N.Y.S.2d 451(2d Dep't 2007); Howell, 13 A.D.3d at342,786 N.Y.S.2datll3. 'Was A A. Plaintiffls Failure to Establish Defendant's Neslisence Proximate Cause Of The Accident Warra 30. In Shatz v. Kutshers Country Club,247 A.D.2d 375,668 N.Y.S .2d 643 (2d Dep't 1998), a case brought before the Second Department, a country club guest was killed while loading his bags into the back of his car parked in the country club's arrival and departure circle. Apparently, the driver of another vehicle lost control, traversed the circle, careened off another vehicle, and then hit the decedent. In reversing the order of the Supreme Court denying the 11 11 of 16 country club's motion for summary judgment, the Second Department held that the plaintiffs failure to raise a triable issue of fact that any conduct on the part of the country club was one of the causes of the accident, rather than merely providing the occasion for the accident, entitled the country club to summary judgment and warranted the dismissal of plaintiffs Complaint. Shatz, supra. 31. In the instant action, there are similarly no material and triable issues of fact with respect to proximate cause. Plaintiff s deposition testimony is not conclusory or speculative. Plaintiff admittedly does not recall ever altering her path of travel due to the subject fence or otherwise and, as a result, has failed to put forth any evidence showing that the presence of the encroaching fence, negligent or otherwise, caused her to fall into a subway shaft. See Exhibit rrD." In fact, every indication in the record points to only one conclusion that plaintiff - would have fallen through the subject subway grate anyway, regardless of whether the fence was there or not. 32. To wit, plaintiff has failed to show that she was eyen consciously aware of the subject fence's existence prior to the accident. As stated herein, plaintiff testified that she did not recall "acknowledging the presence" or "having a conscious thought saying there was a wall" as she was walking, nor did she remember thinking, "there [is] a wall, let's move over." See Exhibit (D" at 24. Plaintiff aff,rrmed this position multiple times saying: i)she "did not notice any construction sites" as she proceeded down Smith Street; ii) she did not remember "noticing [the subject construction wall]"; iii)she could not recall whether she was aware of the existence of the construction wall before the accident; and iv) she does not remember whether anyone else said anything about the wall prior to the accident. See Exhibit rrD" at 16, 61, 70, 25 respectively. Obviously, if plaintiff cannot even recall noticing the allegedly encroaching T2 12 of 16 fence at any time leading up to the accÍdent, then she cannot claim to have changed her path of travel as a result of its existence. 33. Just as significantly, though, plaintiff has also failed to show that she changed her position on the sidewalk as a result of the subject fence or otherwise. As stated herein, plaintiff testified that she did not recall changing directions aI any time as she walked on the west side of Smith Street up until the time of the accident. See ExhÍbit ((D" at 60,61. Plaintiff also did not remember whether "the distance that [she was] from the curb change[d] at all up until the point of the accident as [she] was walking." See Exhibit '(D" at 63. V/hile she does recall the people in her group "converging" as they crossed over to the corner of Douglass and Smith Streets, she was unable to testify that she, too, "converged." See Exhibit ((D" aI60. 34. Consequently, plaintifPs testimony that she did not consciously recognize the existence of the subject fence and admittedly did not alter her path of travel due to s¿une, evidences that plaintiff would have walked into the alleged defect even if the fence did not exist. Indeed, the fence had no impact on plaintiff s path of travel and thus, had nothing to do with the accident. B. The Sole Proximate Cause Of The Accident Was Plaintiffs Failure To See That \ilhich She Should Have Seen 35. In Lee v. D. Daniels Contracting. Ltd., 113 4.D.3d824,978 N.Y.S.2d908 (2d Dep't 2014), a case involving a motor vehicle accident that occurred when plaintiff struck a garbage truck parked blocking the right lane of the roadway on which he was traveling, the Second Department held that defendants were entitled to summary judgment by presenting evidentiary proof that the conduct of stoppingthe garbage truck in the roadway merely fumished the condition for the accident but was not the proximate cause thereof. Lee, supra. To wit, plaintiff testified at his deposition that he first saw the truck only a second before he hit it. Lee, 13 13 of 16 supra. Defendants argued that they were not liable for the occurrence of the accident since the sole proximate cause was the plaintiffs failure to see that which he should have seen, and the Second Department agreed. Lee, supra. 36. In the instant case, plaintiff testified that there was nothing "blocking [her] view on the sidewalk from seeing what was there to be seen." See Exhibit (D)' at 18. She further admitted that she did not have any trouble seeing ahead of her as she was walking, nor did she have any trouble seeing what was immediately in front of her despite it being dark out. See Exhibit ((D" at 66. ln other words, there were no "obstruction[s] to [her] sight when she was walking down Smith Street," other than it being nighuime and dark, but plaintiff admits that it was not so dark that she could not see. See Exhibit 66D' at 16, 17. In fact, she stated that the artificial lighting conditions were standard for the City and that none of the streetlights on Smith Street were out at the time of the accident. See Exhibit ((D" at 17 , 65. 37. V/hile plaintiff has failed to explicitly state why it is that she failed to see the open subway grate that was clearly in front of her as she approached, the evidence proffered in the record leads to only one logical conclusion: that plaintiff was not looking where she was going (forward) at the time of the accident. To wit, plaintiff repeatedly testified that she does not know which way she was looking immediately before the fall. See Exhibit 'rD' at 19,65,66. She does, howevet, remember that she was listening and "looking back at [her] friend Aaron," who was walking behind her. See Exhibit "D" at 18. "'We were just walking and talking and then one minute I'm listening to my friend talk and the next I just started falling." See Exhibit íD" at 18. She further stated that when someone behind her is talking to her, she will normally "look at them and [only] sometimes look forward" so as to "acknowledge people when they speak to [her]." See Exhibit('D" at 18. t4 14 of 16 38. In summary, plaintiff herself stated numerous times that she was not looking forward (in the direction she was walking) in the time immediately leading up to the accident. She further admitted that there were no obstructions that were blocking her view of the sidewalk as she walked toward the dislodged subway grate. In light of the above, SON CLAIRE has clearly demonstrated that the sole proximate cause of plaintiffs fall through the subject subway grate was her own failure to see that which she should have seen. CONCLUSION 39. It is respectfully submitted that SON CLAIRE is entitled to summary judgment, dismissing plaintiffls Verified Complaint and all cross-claims, because any negligence purportedly attributable to SON CLAIRE cannot - as a matter of law - be a proximate cause of this accident. 40. It is well settled law in the Second Department that liability may not be imposed on a party whose alleged negligence merely furnishes the condition or occasion for the occurrence of an event but was not the proximate cause of the accident. 41. As previously discussed, the fence was not and could not have been the proximate cause of plaintiff s accident because plaintiff admittedly did not alter her path of travel as a result of the subject fence. While the subject fence may or may not have furnished an occasion for the accident, plaintiff never deviated from the direction she was traveling on the sidewalk (which was straight toward the open subway grate), on account of the subject fence or otherwise. Thus, the fence was clearly not a substantial factor in causing plaintiffs accident, and therefore, could not have been a proximate cause of same. 42. Furthermore, SON CLAIRE has established that the sole cause of the accident was plaintiff s own failure to see that which she should have seen. Plaintiff was admittedly 15 15 of 16 looking behind her, talking to friends, in the time leading up to the accident, so she never saw the dislodged subway grate, irrespective of the fact that there was nothing to obstruct her view of same. 43. Accordingly, based upon plaintiff s testimony and the case law discussed herein, liability - as a matter of law - cannot be imposed upon SON CLAIRE and the within motion for summary judgment should be granted in favor of SON CLAIRE, dismissing plaintiff s Verified Complaint and all cross-claims 44. No prior application for the relief requested herein has been made to this Court or any other Court. \üHEREFORE, it is respectfully requested that this Court issue an Order: (1) granting summary judgment to SON CLAIRE dismissing plaintiff s Verified and all cross- claims; and (2) for such other and further relief as this Court may and proper. Dated: Woodbury, New York June 15,2016 t6 16 of 16