Motion-Secondary: Emily Fiero v. City Of New York, Metropolitan Transportation Authority, New York City Transit Authority D/B/A Mta New York City Transit, Son Claire Realty, Llc

On December 30, 2013 a Motion-Secondary was filed involving a dispute between Emily Fiero, and City Of New York, Metropolitan Transportation Authority, New York City Transit Authority D B A Mta New York City Transit, Son Claire Realty, Llc, for Tort in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 08/07/2018 03:06 PM INDEX NO. 508360/2013
NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 08/07/2018

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------------XX Index No.: 508360/2013
EMILY FIERO,

Plaintiff, AFFIRMATION IN
OPPOSITION
-against-

Hon. Katherine Levine

CITY OF NEW YORK, METROPOLITAN
TRANSPORTATION AUTHORITY, NEW YORK CITY Returnable: August 17, 2018
TRANSIT AUTHORITY d/b/a MTA NEW YORK CITY
TRANSIT and SON CLAIRE REALTY, LLC,

Defendants.
-
------------------------------------------------------------------------XX

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 § 2106:

1. I am a member of Milber Makris Plousadis & Seiden, LLP, attorneys for defendant

SON CLAIRE LLC ("SON and I make this affirmation in opposition to co-
REALTY, CLAIRE")

defendants NEW YORK CITY TRANSIT AUTHORITY ("NYCTA") and METROPOLITAN

TRANSPORTATION AUTHORITY ("MTA")'s motion for summary judgment pursuant to

CPLR § 3211 and § 3212, and Public Authorities Law § 1263, and for such other and further relief

as this Court may deem just and proper.

2. It is respectfully submitted that co-defendants NYCTA and MTA's respective

motions for summary judgment are untenable as a matter of law. As it relates to NYCTA, it

utterly misconstrues the allegedly defective condition at issue in this matter and ignores

precedent from the First Department almost directly on point-even though NYCTA was a

defendant therein. Giacotto v. New York City Transit Authority, 184 A.D.2d 355, 585 N.Y.S2d

351 (1st Dep't. 1992).

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3. In the defective condition is as NYCTA that the NYCTA-
fact, not, maintains,

maintained subway vent grating became upended. Rather, it is the mere installation of a

parking meter on top of the subject grating that was not properly secured that created a

hazardous condition. Itis therefore submitted that a question of fact exists as to whether this

installation should have prompted NYCTA to take preventative measures, such as locking the

grate, in order to prevent the meter from tipping over and thereby uplift the grating. See Giacotto.

(Where plaintiff presented evidence that a subway grate had previously been tampered with but

was not locked down, the court held, "A factual question remains whether the tampering was

sufficiently overt and took place over a sufficiently long period of time to afford defendant, in the

exercise of reasonable care, the opportunity to discover and remedy the situation.")

4. Because NYCTA wrongly describes the defective condition at issue, it is not

that the papers ignore the of Sal â€”
Celano-who
entirely surprising moving completely testimony

testified on behalf of co-defendant, New York City-asâ€” well as crucial portions of testimony from

NYCTA's own witness, Frank Mantione, which corroborate that NYCTA did in fact have

constructive notice of the alleged defective condition. In that regard, Mr. Celano, an Assistant

Chief in the Department of Transportation, stated that a parking meter was originally installed on

top of the subject subway grating in November 2003, and remained present until the date of this

accident of June 16, 2013. Most significantly, NYCTA's own witness, Mr. Mantione, conceded

that he was fully aware that such installation of parking meters could damage the grates,

particularly if a vehicle were to hit the meter, as a collision could cause a grate to

subsequently become dislodged. There thus remains material and triable issues of fact as to

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whether NYCTA did indeed have constructive notice of the subject defective condition-that

being, the mere installation of a parking meter upon the subway grate-which should have alerted

NYCTA to take reasonable steps to secure the subject grating.

5. MTA, on the other hand, inaptly relies on case law with narrow holdings to assert

that itis not a proper party to the instant action. Indeed, the case law cited by MTA in attempting

to substantiate its claim that it is not a proper party does not at all address whether MTA is

specifically responsible for maintaining subway grating. Because MTA's motion is premised on

this inapplicable case law, itsmotion similarly must be denied in itsentirety.

6. NYCTA's total misrepresentation of the defective condition at issue, and itsglaring

failure to address their awareness that a parking meter could damage a subway grate is fatalto its

motion. MTA's misguided reliance on inapposite case law likewise warrants denial of summary

judgment. Accordingly, because there are material and triable issues of fact that abound, the

instant motion should be denied in its entirety.

ARGUMENT

POINT I

CO-DEFENDANT NYCTA HAS NOT SUSTAINED ITS INITIAL BURDEN IN

MOVING FOR SUMMARY JUDGMENT IN THAT IT HAS COMPLETELY
IGNORED EVIDENCE THAT SHOWS THAT IT HAD CONSTRUCTIVE
NOTICE OF THE ALLEGEDLY DANGEROUS CONDITION

7. On a motion for summary judgment to dismiss the complaint backed upon lack of

notice, defendant NYCTA, as the moving party, bears "'the initial burden of demonstrating that it

had maintained the property in a reasonably safe condition and that itdid not create or have actual

or constructive notice of the specific allegedly dangerous condition that resulted in plaintiff's

injury.'"
Firment v. Dick's Sporting Goods, Inc., 160 A.D.3d 1259, 1259-1260, 74 N.Y.S.3d 671

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(3d Dep't 2018), quoting Beck v. Stewart's Shops Corp., 156 A.D.3d 1040, 1041, 66 N.Y.S.3d 79

(3d Dep't. 2017); See also Dwoskin v. Burger King Corp., 249 A.D.2d 358 (2d Dep't. 1998);

Correll v U.S. Bank N.A., 122 A.D.3d 791, 792, 996 N.Y.S.2d 694 (2d Dep't. 2014); Durri v. City

of New York, 95 A.D.3d 1273, 1274, 944 N.Y.S.2d 755 (2d Dep't. 2012); Nelson v. Cunningham

Assoc., LP., 77 A.D.3d 638, 639-640, 908 N.Y.S.2d 713 (2d Dep't. 2010); Powell v. Pasqualino,

40 A.D.3d 725, 836 N.Y.S.2d 218 (2d Dept. 2007); Dulgov v City of New York, 33 A.D.3d 584,

585, 822 N.Y.S.2d 298; and Patrick v. Bally's Total Fitness, 292 A.D.2d 433, 434, 739 N.Y.S.2d

186 (2d Dep't. 2012).

8. "To constitute constructive notice, a defect must be visible and apparent and itmust

exist for a sufficient length of time prior
I to the accident to permit
X [a
L defendant] J to discover and

it."
remedy Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986). See also

Negri v. Stop & Shop, 65 N.Y.2d 625 (1985); Lewis v. Metropolitan Transp. Auth., 64 N.Y.2d

670 (1984).

9. NYCTA totally and fatally misconstrues the defective condition at issue. The

defective condition is not that the subject vent grate was uplifted, as NYCTA wrongly contends in

its moving papers, but rather it is the mere installation of a parking meter upon the subway

grate-coupled with a failure to more securely affix the grate. Indeed, itsvery own witness,

(whose testimony itheavily relies upon in support of summary judgment), unequivocally testified

that it is not safe to install parking meters on top of subway grates. In fact, Mr. Mantione

conceded that a vehicle can hit a parking meter that is attached to a grate, causing the subway

grate to dislodge:

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Q: In your experience as a plumber inspecting and cleaning the vents, had you
ever seen a parking meter attached to a New York City Transit Authority
subway grate?
A: Of course.
Q: Is that a common thing to see?
A: Knowing the City of New York, they put meters anywhere. They'd put them
on your house ifthey could. They put them wherever they can. And ifthere

is a grating there, there are going to put them on the grating. I don't agree
with the procedure myself, but they do.

Q: Why don't you agree with the procedure?

A: Because first of all, it creates too much of a problem. It could cause
damage to the vents. Personally, I don't like it.
Q: What kind of damage can itcause to the vents?
A: Well, if itis hit by a car or something, it could dislodge the vent grating.

It could do anything like that. Ifitis kicked or hit by somebody, itcould, or

just hung on by somebody, it could actually either and I don't think itwill
bend the parking meter. It would probably break the bracket or maybe
damage the vent that way, the vent grating.

Movant has attached a complete and accurate copy of Mr. Mantione's deposition testimony as

"G." "A."
Movant's Exhibit The above-referenced portions are annexed hereto as Exhibit

witness'
Incredibly, NYCTA makes absolutely no mention of its own recognition of the

danger posed by placing a parking meter on top of a subway grate.

10. Given how NYCTA absurdly premised its entire argument concerning lack of

constructive notice on a completely flawed interpretation of the defective condition at issue, it is

unsurprising that it overlooked key evidence that NYCTA knew or at least, should have known,

that a parking meter was installed on top of the subject grate. In itsown moving papers, NYCTA

admits that it last cleaned and inspected the subject grates on January 19, 2013. See Movant's

"B."
Affirmation in Support, 19 and Exhibit Sal Celano, Assistant Chief of the Department of

Transportation for the City of New York, testified that the parking meter at issue was affixed to

"C"
the subject subway grate in or about November 2003. See Exhibit at 54-55. While Mr. Celano

acknowledged that NYCTA would not have been formally notified that a parking meter was to be

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installed on top of the subway grate, there remains a triable issue of fact that NYCTA became

aware-or should have been aware--of the installation of said parking meter during its

"C"
routine cleaning and inspections of subway grates, as discussed herein. See Exhibit at

109-111. Given that the danger presented by this condition was acknowledged by its own

deposition witness, itis remarkable that NYCTA has made the within motion.

11. More notable, perhaps, is that the facts of this case are nearly identical to those

presented in Giacotto, an Appellate Division decision entirely ignored by the movant-even

though the movant herein was the defendant in the Giacotto case!

12. In Giacotto, plaintiff similarly fell down through an open subway grate on a New

York City sidewalk. At trial,plaintiff therein presented the testimony of the manager of a store

located adjacent to the accident site;he testified that he saw over the years that various individuals

had tampered with a subway grate in the vicinity of the accident. This testimony was contradicted

by the witness produced by NYCTA, who stated that in his 15 years working for defendant, he

never once had to replace a grate that had been tampered with. Based upon this conflicting

testimony, the Appellate Division held that there was a question of fact as to whether NYCTA had

notice that tampering had occurred, such that NYCTA should have used some locking mechanism

to affix the grates and remedy the situation.

13. Likewise, in the case at bar, NYCTA knew or should have known that there was a

witness'
parking meter mounted onto the subject subway grate. Moreover, by itsown admission

(an admission not made in Giacotta), NYCTA knew that such installation created a

hazardous condition and the potential for vehicles to hit the meter and thereby upend the

grate. Given this knowledge and movant's admission, there is at the very least a question of fact

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as to whether the NYCTA should have taken preventative measures such as locking the grate or

loosened."
otherwise "[designed] the metal subway grating in a fashion so that itcould not become

Giacotto at 355.

14. What should be clear is that the arguments against summary judgment herein are

more powerful than those faced by the court in Giacotto, supra, where NYCTA at least denied

prior knowledge that a party tampered with a subway grate and did nothing to secure it. Herein,

NYCTA admitted knowledge of the condition-that the placement of a meter on a subway grate

was a potential hazard about which the movant did nothing-an issue that NYCTA wholly ignores

in itsmoving papers.

15. On that note, the case law cited by NYCTA in attempting to substantiate itslack of

notice claim actually does more to support the counter view that NYCTA did in fact have

constructive notice of the alleged defective condition. NYCTA cites Gordon and Madrid v.

New York, 42 N.Y.2d 1039, 399 N.Y.S.2d 205 (1977), for the proposition that "the [alleged

defective] condition must have existed for a sufficient length of time so that defendant in the

it."
exercise of reasonable care not only should have discovered it,but also could have corrected

See Movant's Affirmation in Support, ¶l9. NYCTA further cites Kennedy v. Wegman's Food

Markets, 90 N.Y.2d 923, 664 N.Y.S.2d 259 (1997); Grimes v. Golub Corp., 188 A.D.2d 721, 590

N.Y.S.2d 590 (3d Dept. 1992); and Torri v. Big V of Kingston, Inc. 147 A.D.2d 743, 537 N.Y.S.2d

629 (3d. Dep't 1989), for the premise that "[i]n the absence of any evidence of how long a

notice."
condition existed prior to plaintiff's fall...plaintiff may not rely on a theory of constructive

See Movant's Affirmation in Support, 120.

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16. In Gordon, the defect complained of was a piece of wax paper on the steps upon

which plaintiff slipped-a transient condition. The ruling in that case was premised on the fact

that there was "no evidence that anyone, including plaintiff, observed the piece of white paper

prior to the accident. Nor did he describe the paper as being dirty or worn, which would have

provided some indication that ithad been present for some period of time...Thus, on the evidence

presented, the piece of paper that caused plaintiff's fall could have been deposited there only

speculation."
minutes or seconds before the accident and any other conclusion would be pure

Gordon at 837-838 (internal citations omitted).

17. In Madrid, the defect complained of was a light drizzle outside Bellevue Hospital's

out-patient clinic for approximately five minutes before the clinic was opened, which allegedly

caused plaintiff to fall. The Court there held that defendant did not have "a sufficient opportunity

one."
to remedy a dangerous situation if there had been Madrid at 1039.

18. The instant case is markedly distinguishable in that more than sufficient evidence

has been proffered indicating that the parking meter had been in place for a significant period of

time. Indeed, the testimony of Mr. Celano undisputedly establishes that the parking meter was

installed in or about November 2003, approximately nine-and-a-half years prior to the

"C"
accident. See Exhibit at 54-55. Thus, and contrary to movant's contentions, there is ample

evidence to show that the defective condition existed for nearly a decade prior to plaintiff's

fall-a â€”condition that NYCTA witness acknowledged was unsafe!

19. NYCTA also erroneously relies upon the holding in Gordon that a general

awareness that an unsafe condition may be present is not sufficient to place defendant on

constructive notice. See Movant's Affirmation in Support, ¶21. In that case, the Court held that

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"neither general awareness that litter or some other dangerous condition may be present nor the

fact that plaintiff observed other papers on another portion of the steps approximately 10 minutes

before his fall is legally sufficient to charge defendant with constructive notice of the paper he fell

on."
(internal citations omitted.) (emphasis added.)

20. Herein, of course, Mr. Mantione of NYCTA expressly testified that the placement

of parking meters on top of subway grating is not safe. He further testified that prior to January

2013, NYCTA cleaned the subject grating once every three years, and that the subject grating had

last been cleaned on January 19, 2013-approximately six months before the accident. See Exhibit

"D."
Itis rather preposterous for NYCTA to claim that ithad neither actual nor constructive notice

of the allegedly defective condition; at the very least, there exists an issue of fact that movant

should have known of the subject condition and done something to correct it,thus defeating the

within motion for summary judgment.

21. Moreover, the affidavits NYCTA proffered in support of its motion do not at

all address the actual defective condition at issue. To wit, the affidavits from Terence Purdon,

David Rowe, and Priscilla R. Sullivan, all NYCTA employees, blatantly fail to discuss whether

NYCTA knew or should have known that a parking meter was installed upon the subject grating,

and/or whether the mere existence of such installation created a dangerous condition. (Indeed,

NYCTA's motion papers refer to the subject parking meter only once. See Movant's Affirmation

in Support, 19.) In any event, the affidavits do nothing to negate the testimony of NYCTA's very

own deposition witness, who testified, in no uncertain terms, that it is unsafe-that it is a

'problem' â€” have parking meters on subway grates.

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22. Consequently, for all the foregoing reasons, NYCTA's motion for summary

judgment should be denied.

POINT H

CO-DEFENDANT MTA HAS NOT SUSTAINED ITS INITIAL BURDEN IN
MOVING FOR SUMMARY JUDGMENT IN THAT IT RELIES ON
INAPPLICABLE CASE LAW TO ERRONEOUSLY CONTEND THAT IT IS
NOT A PROPER PARTY TO THE INSTANT ACTION

23. MTA mistakenly contends that it is not a proper party to the suit as it owes "no

this."
duty to a plaintiff who alleges personal injury in an action such as See Movant's Affirmation

in Support, $29. MTA specifically maintains that the functions of the MTA are limited to

financing and planning as it relates to public transportation, and not the ownership, operation,

maintenance or control of any vehicles, trains, subway stations, or transportation facilities.

However, each of the cases on which MTA detrimentally relies contains narrow holdings, none

of which specifically address whether MTA is charged with the function of maintaining

subway grates.

24. In Wenthen v. Metropolitan Transportation Authority, 95 A.D.2d 852, 464

N.Y.S.2d 212 (2d Dep't. 1983), the Second Department narrowly held that the MTA was a distinct

legal entity for the purposes of a suit alleging assault, false imprisonment, breach of contract

of carriage, and other related claims against the Long Island Railroad. In Matter of Abrams

v. New York City Transit Authority, 48 A.D.2d 69, 368 N.Y.S.2d 165 (1st Dep't. 1975), the

Appellate Division similarly narrowly held that MTA "is an independent public authority with no

proceeding."
responsibility for excessive subway noises and, therefore, is not a proper party to this

Likewise, in Cusick v. Lutheran Medical Center, et. al., 105 A.D.2d 681, 481 N.Y.S.2d 122 (2d

Dep't. 1984) and Adams v. New York City Transit Authority, 140 A.D.2d 572, 528 N.Y.S.2d 638

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(2d Dep't. 1988), the Second Department therein dismissed claims against MTA relating to a death

of a bus driver and injuries to passengers on a bus. In none of the cases cited by MTA, in which

courts variously dismissed claims against MTA on very narrow and specific grounds, did a court

hold that MTA is not responsible for maintaining subway grating.

25. In Prinz v. City of New York, 98 Misc.2d 952, 415 N.Y.S.2d 200 (Supreme Court,

New York County, 1979), the Supreme Court, New York County held that plaintiff failed to rebut

MTA's statement that itbore no responsibility over a passageway near a subway station in which

the decedent was murdered. In the instant action, MTA failed to produce a witness for a

deposition. Moreover, unlike NYCTA, MTA did not proffer a single affidavit in itsmoving

papers to buttress its position that its functions are limited to financing and planning. There is,

thus, no affirmative support for MTA's claim that it does not, in any way, maintain subway

gratings. As such, their motion for summary judgment is premature.

26. A review of MTA's website, however, strongly suggests that MTA does in fact

maintain subway gratings. Indeed, in 2013 MTA authored a pamphlet detailing MTA's efforts at

repairing the subway stations, including replacing track equipment post Superstorm Sandy. See

"E."
Exhibit This four-page pamphlet directly contradicts MTA's position that itdoes not maintain

the New York City subway stations.

27. Based on the above, it is clear that MTA's motion for summary judgment as a

matter of law must be denied.

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WHEREFORE, it isrespectfully requested that the within motion for summary judgment

be denied in itsentirety, and that the Court award such other and further relief as it may deem just

and proper.

Dated: White Plains, New York
August 7, 2018

j
!.

LARRY SHAW

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Case Info

Judge

Dawn M Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

August 07, 2018

Case Filing Date

December 30, 2013

County

Parties

CITY OF NEW YORK Defendant
Counsel, Corporation Attorney for the Defendants
Emily Fiero Plaintiff
FRUHLING, MICHAEL A Attorney for the Plaintiff
GERSOWITZ, EDWARD H. Attorney for the Plaintiff
HACKWELDER, WILLIAM EDWARD Attorney for the Plaintiff
JOSEPH-ST. BERNARD, JAMILA E. Attorney for the Defendants
KLABEN-FINEGOLD, ANDREW Attorney for the Defendants
METROPOLITAN TRANSPORTATION AUTHORITY Defendant
NEW YORK CITY TRANSIT AUTHORITY d/b/a MTA NEW YORK CITY TRANSIT Defendant
O'SHAUGHNESSY, TIMOTHY J. Attorney for the Defendants
PRESTON, JAMES GEORGE Attorney for the Defendants
SHAW, LARRY M. Attorney for the Defendants
SON CLAIRE REALTY, LLC Defendant
ZENTZ, MICHAEL THOMAS Attorney for the Defendants
WALLACE GOSSETT Attorneys for Defendants
ZACHARY CARTER Attorneys for Defendants
MICHAEL CHESSA Attorneys for Plaintiffs
LAWRENCE HEISLER Attorneys for Defendants

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