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FILED: KINGS COUNTY CLERK 01/13/2019 09:42 AM INDEX NO. 508360/2013
NYSCEF DOC. NO. 247 RECEIVED NYSCEF: 01/13/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------------------------------------------------------- ---X
EMILY FIERO,
Plaintiff(s),
-against- AFFIRMATION IN SUPPORT
CITY OF NEW YORK, METROPOLITAN Index No.: 508360/13
TRANSPORTATION AUTHORITY, NEW YORK CITY
TRANSIT AUTHORITY d/b/a/ MTA NEW YORK CITY Assigned Justice:
TRANSIT, and SON CLAIRE REALTY, LLC, Hon.
Defendant(s).
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JAMES G. PRESTON, an attorney duly admitted to practice in the Courts of this State,
affirms the following to be true under penalties of perjury pursuant to CPLR § 2106:
1. I am special counsel for the defendants METROPOLITAN TRANSPORTATION
AUTHORITY (hereinafter the "MTA"), NEW YORK CITY TRANSIT AUTHORITY
(incorrectly sued herein as "NEW YORK CITY TRANSIT AUTHORITY d/b/a MTA NEW
YORK CITY TRANSIT") and hereinafter referred to as the "NYCTA".
2. I am fully familiar with the facts and circumstances related herein, by virtue of a
review of the legal file in this case maintained by the Office of LAWRENCE HEISLER, Esq.,
acting attorney of record for the Attorney for the Defendant NYCTA.
3. This affirmation is respectfully submitted in support of the within motion for leave
to re-argue pursuant to CPLR 2221(d) the prior Order of the Court to the extent itgranted the CITY
OF NEW YORK's motion for summary judgment; (2) and upon such re-argument denying the
CITY OF NEW YROK's motion for summary judgment; and (3) together with such other and
further relief as this Court deems just and proper.
PROCEDURAL HISTORY
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4. The defendant CITY OF NEW YORK (the "City") moved for summary judgment
and/or dismissal in this matter by motion dated September 14, 2018 (hereinafter referred to as the
"Prior Motion") (Prior Motion for summary judgment and/or dismissal is annexed hereto as
Exhibit "1").
5. Co-defendant SON CLAIRE REALTY, LLC, (hereinafter "SON CLAIRE")
submitted an Affirmation in Opposition to the Prior Motion, dated November 8, 2018, which is
annexed hereto as Exhibit "2".
6. Plaintiff EMILY FIERO submitted an Affirmation in Opposition, dated October
26, 2018, to the Prior Motion which is annexed hereto as Exhibit "3".
7. The MTA and NYCTA's Affirmation in Opposition dated November 8, 2018 is
annexed hereto as Exhibit "4".
8. The City then interposed reply to opposition dated November 30, 2018 (See Reply
of City annexed hereto as Exhibit "5").
9. The underlying motion was decided by the Honorable Katherin Levine by Decision
and Order dated December 14, 2018, and entered in the Clerk's Office of Kings County on
"Decision"
December 26, 2018 (See for Prior Motion for summary judgment and/or dismissal with
Notice of Entry annexed hereto as Exhibit "6"). The instant motion is both timely and properly
before this Court.
NATURE OF THE ACTION
10. This lawsuit arises from an accident that allegedly occurred on June 16, 2013,
between 2:00 a.m. and 2:40 a.m., on Smith Street between Douglas Street and Butler Street,
County of Kings, City and State of New York. Plaintiff, EMILY FIERO, alleges that at said date,
time, and location, she was walking northbound on the west side of Smith Street when she stepped
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into an opening in the sidewalk by reason of a dislodged and upended subway vent grate, located
thirty (30) feet north of Douglas Street, which had a parking meter affixed thereto. As a result, the
plaintiff alleges, in boiler plate fashion, to have sustained serious personal injuries.
MOTION TO RE-ARGUE THE GRANT OF SUMMARY JUDGMENT IN
FACOR OF THE CITY
11. Pursuant to CPLR 2221(d) a motion to re-argue is proper where itdoes not include
motion."
"any matters of fact not offered on the prior No new facts are offered on the instant
motion to re-argue.
12. It is respectfully submitted that in issuing the Decision, this Honorable Court
misapprehended the facts, law and legal arguments set forth in the underlying motion. In fact, oral
argument was essentially a free for all. I respectfully submit to the Court that I was not permitted
a fair opportunity to state the facts and legal arguments set forth in the NYCTA's motion for
summary judgment (which directly affect the Court's consideration of the City's motion for
summary judgment). Although the Court properly denied the plaintiff's motion for summary
judgment, the Court failed to understand the facts leading up to the incident and how the incident
is even alleged to have occurred. The fact that the Court granted the CITY's summary judgment
in the same Order, and denied the NYCTA's motion, demonstrates that the Court did not
apprehend the undisputed facts. The grant of summary judgment to the City directly contradicts
the denial of a grant of summary judgment to the NYCTA.
13. As was demonstrated in the Prior Motion, the defendant NYCTA did not breach
any duty owed to the plaintiff relative to the alleged ownership, operation, maintenance,
management, repair or control of the subway grating which is the subject of this lawsuit, and
therefore, does not bear any liability to the plaintiff related thereto as matter of law. However,
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the NYCTA's motion was denied.
14. It should be noted that the NYCTA and MTA have also moved to re-argue and set
aside that denial by separate motion dated December 31, 2018 and noticed to be heard on February
8, 2019.
BASIS OF THE MOTION
15. The argument is simple. The elements which the City had to demonstrate on its
motion was that the City did not cause and create a hazardous condition by installing the parking
meter on the grating nor, did the City have notice of the parking meter (with the grating) having
been dislodged. Instead, on the motion, the City argued, that it did not own the subject metal
sidewalk grating. However, the City never argued that itdid not own the parking meter attached
thererto. If the Court grants summary judgment to the City, as was done in this case, the Court is
necessarily making a determination that the installation of the subject parking meter on the subway
grating, and the general existence of the parking meter on the subject grating, is/are not an
inherently dangerous or hazardous conditions since here, the City admitted that installed and
maintained the subject parking meter. In addition, the City's motion was opposed based upon
cause and create arguments. No such arguments were made against the NYCTA. Such a
determination by the Court must necessarily result in a grant of at least partial summary judgment
to the NYCTA on the cause and create question.
16. The Court, after making a determination in favor of the City, would have to then
determine whether the City had notice that the subject parking meter was dislodged and thus
created a hazard. Here, the Court seems to have only made such a determination by implication
since the thrust of the City's motion is that they have nothing to do with the sidewalk grating which
is obviously untrue.
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17. The City had a duty to routinely monitor and inspect their sidewalk hardware (the
parking meter affixed to the sidewalk grating) just as the NYCTA had a duty to routinely monitor
and inspected the subject subway grating. Unlike the NYCTA the City offered no proof
whatsoever that it discharged that duty. As such, at best only partial summary judgment should
have been granted to the City ifthe Court were to determine that the affixing of a parking meter to
a subway grating did not constitute a dangerous condition.
18. Thus, if that decision with respect to the City stands, then, the NYCTA must also
be granted at leastpartial summary judgment since the Court finds the condition of a parking meter
being affixed to a subway grating as not constituting a hazardous condition.
19. As a result, the only question then left with respect to the NYCTA, upon a grant of
summary judgment to the City, was whether the NYCTA had notice of the fact that the subject
parking meter and grating had been dislodged. The NYCTA properly demonstrated a lack of such
notice and therefore the NYCTA's motion should have been granted as well. Accordingly, the
City's motion should be at leastpartially denied on the question of actual notice.
20. No prior request for the relief sought herein has been made in this or any other
Court except as noted above.
WHEREFORE, itis respectfully requested that the instant motion for summary judgment
on the issue of liability be granted and for such other and further relief as this Court may deem
just, proper and not inconsistent herewith.
Dated: Syosset, New York
January 7, 2019 Yours, etc...
PRESTON LAW FiRm, .
ES G. PR .
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Preview
FILED: KINGS COUNTY CLERK 01/13/2019 09:42 AM INDEX NO. 508360/2013 NYSCEF DOC. NO. 247 RECEIVED NYSCEF: 01/13/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------- ---X EMILY FIERO, Plaintiff(s), -against- AFFIRMATION IN SUPPORT CITY OF NEW YORK, METROPOLITAN Index No.: 508360/13 TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY d/b/a/ MTA NEW YORK CITY Assigned Justice: TRANSIT, and SON CLAIRE REALTY, LLC, Hon. Defendant(s). ------------------------------- -------------- -----X JAMES G. PRESTON, an attorney duly admitted to practice in the Courts of this State, affirms the following to be true under penalties of perjury pursuant to CPLR § 2106: 1. I am special counsel for the defendants METROPOLITAN TRANSPORTATION AUTHORITY (hereinafter the "MTA"), NEW YORK CITY TRANSIT AUTHORITY (incorrectly sued herein as "NEW YORK CITY TRANSIT AUTHORITY d/b/a MTA NEW YORK CITY TRANSIT") and hereinafter referred to as the "NYCTA". 2. I am fully familiar with the facts and circumstances related herein, by virtue of a review of the legal file in this case maintained by the Office of LAWRENCE HEISLER, Esq., acting attorney of record for the Attorney for the Defendant NYCTA. 3. This affirmation is respectfully submitted in support of the within motion for leave to re-argue pursuant to CPLR 2221(d) the prior Order of the Court to the extent itgranted the CITY OF NEW YORK's motion for summary judgment; (2) and upon such re-argument denying the CITY OF NEW YROK's motion for summary judgment; and (3) together with such other and further relief as this Court deems just and proper. PROCEDURAL HISTORY 4 1 of 5 FILED: KINGS COUNTY CLERK 01/13/2019 09:42 AM INDEX NO. 508360/2013 NYSCEF DOC. NO. 247 RECEIVED NYSCEF: 01/13/2019 4. The defendant CITY OF NEW YORK (the "City") moved for summary judgment and/or dismissal in this matter by motion dated September 14, 2018 (hereinafter referred to as the "Prior Motion") (Prior Motion for summary judgment and/or dismissal is annexed hereto as Exhibit "1"). 5. Co-defendant SON CLAIRE REALTY, LLC, (hereinafter "SON CLAIRE") submitted an Affirmation in Opposition to the Prior Motion, dated November 8, 2018, which is annexed hereto as Exhibit "2". 6. Plaintiff EMILY FIERO submitted an Affirmation in Opposition, dated October 26, 2018, to the Prior Motion which is annexed hereto as Exhibit "3". 7. The MTA and NYCTA's Affirmation in Opposition dated November 8, 2018 is annexed hereto as Exhibit "4". 8. The City then interposed reply to opposition dated November 30, 2018 (See Reply of City annexed hereto as Exhibit "5"). 9. The underlying motion was decided by the Honorable Katherin Levine by Decision and Order dated December 14, 2018, and entered in the Clerk's Office of Kings County on "Decision" December 26, 2018 (See for Prior Motion for summary judgment and/or dismissal with Notice of Entry annexed hereto as Exhibit "6"). The instant motion is both timely and properly before this Court. NATURE OF THE ACTION 10. This lawsuit arises from an accident that allegedly occurred on June 16, 2013, between 2:00 a.m. and 2:40 a.m., on Smith Street between Douglas Street and Butler Street, County of Kings, City and State of New York. Plaintiff, EMILY FIERO, alleges that at said date, time, and location, she was walking northbound on the west side of Smith Street when she stepped 5 2 of 5 FILED: KINGS COUNTY CLERK 01/13/2019 09:42 AM INDEX NO. 508360/2013 NYSCEF DOC. NO. 247 RECEIVED NYSCEF: 01/13/2019 into an opening in the sidewalk by reason of a dislodged and upended subway vent grate, located thirty (30) feet north of Douglas Street, which had a parking meter affixed thereto. As a result, the plaintiff alleges, in boiler plate fashion, to have sustained serious personal injuries. MOTION TO RE-ARGUE THE GRANT OF SUMMARY JUDGMENT IN FACOR OF THE CITY 11. Pursuant to CPLR 2221(d) a motion to re-argue is proper where itdoes not include motion." "any matters of fact not offered on the prior No new facts are offered on the instant motion to re-argue. 12. It is respectfully submitted that in issuing the Decision, this Honorable Court misapprehended the facts, law and legal arguments set forth in the underlying motion. In fact, oral argument was essentially a free for all. I respectfully submit to the Court that I was not permitted a fair opportunity to state the facts and legal arguments set forth in the NYCTA's motion for summary judgment (which directly affect the Court's consideration of the City's motion for summary judgment). Although the Court properly denied the plaintiff's motion for summary judgment, the Court failed to understand the facts leading up to the incident and how the incident is even alleged to have occurred. The fact that the Court granted the CITY's summary judgment in the same Order, and denied the NYCTA's motion, demonstrates that the Court did not apprehend the undisputed facts. The grant of summary judgment to the City directly contradicts the denial of a grant of summary judgment to the NYCTA. 13. As was demonstrated in the Prior Motion, the defendant NYCTA did not breach any duty owed to the plaintiff relative to the alleged ownership, operation, maintenance, management, repair or control of the subway grating which is the subject of this lawsuit, and therefore, does not bear any liability to the plaintiff related thereto as matter of law. However, 6 3 of 5 FILED: KINGS COUNTY CLERK 01/13/2019 09:42 AM INDEX NO. 508360/2013 NYSCEF DOC. NO. 247 RECEIVED NYSCEF: 01/13/2019 the NYCTA's motion was denied. 14. It should be noted that the NYCTA and MTA have also moved to re-argue and set aside that denial by separate motion dated December 31, 2018 and noticed to be heard on February 8, 2019. BASIS OF THE MOTION 15. The argument is simple. The elements which the City had to demonstrate on its motion was that the City did not cause and create a hazardous condition by installing the parking meter on the grating nor, did the City have notice of the parking meter (with the grating) having been dislodged. Instead, on the motion, the City argued, that it did not own the subject metal sidewalk grating. However, the City never argued that itdid not own the parking meter attached thererto. If the Court grants summary judgment to the City, as was done in this case, the Court is necessarily making a determination that the installation of the subject parking meter on the subway grating, and the general existence of the parking meter on the subject grating, is/are not an inherently dangerous or hazardous conditions since here, the City admitted that installed and maintained the subject parking meter. In addition, the City's motion was opposed based upon cause and create arguments. No such arguments were made against the NYCTA. Such a determination by the Court must necessarily result in a grant of at least partial summary judgment to the NYCTA on the cause and create question. 16. The Court, after making a determination in favor of the City, would have to then determine whether the City had notice that the subject parking meter was dislodged and thus created a hazard. Here, the Court seems to have only made such a determination by implication since the thrust of the City's motion is that they have nothing to do with the sidewalk grating which is obviously untrue. 7 4 of 5 FILED: KINGS COUNTY CLERK 01/13/2019 09:42 AM INDEX NO. 508360/2013 NYSCEF DOC. NO. 247 RECEIVED NYSCEF: 01/13/2019 17. The City had a duty to routinely monitor and inspect their sidewalk hardware (the parking meter affixed to the sidewalk grating) just as the NYCTA had a duty to routinely monitor and inspected the subject subway grating. Unlike the NYCTA the City offered no proof whatsoever that it discharged that duty. As such, at best only partial summary judgment should have been granted to the City ifthe Court were to determine that the affixing of a parking meter to a subway grating did not constitute a dangerous condition. 18. Thus, if that decision with respect to the City stands, then, the NYCTA must also be granted at leastpartial summary judgment since the Court finds the condition of a parking meter being affixed to a subway grating as not constituting a hazardous condition. 19. As a result, the only question then left with respect to the NYCTA, upon a grant of summary judgment to the City, was whether the NYCTA had notice of the fact that the subject parking meter and grating had been dislodged. The NYCTA properly demonstrated a lack of such notice and therefore the NYCTA's motion should have been granted as well. Accordingly, the City's motion should be at leastpartially denied on the question of actual notice. 20. No prior request for the relief sought herein has been made in this or any other Court except as noted above. WHEREFORE, itis respectfully requested that the instant motion for summary judgment on the issue of liability be granted and for such other and further relief as this Court may deem just, proper and not inconsistent herewith. Dated: Syosset, New York January 7, 2019 Yours, etc... PRESTON LAW FiRm, . ES G. PR . 8 5 of 5