### Nunez v City of New York 2024 NY Slip Op 31018(U) March 13, 2024 Supreme Court, New York County Docket Number: Index No. 117678/2009 Judge: Denise M. Dominguez Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001 (U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 67 INDEX NO. 117678/2009 RECEIVED NYSCEF: 03/27/2024 

## SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ



# ------------- ---- Justice

- - --- - - - - -- - - - - - - - - - - - - - ----- ---- -- ------------ - - -- - - -- - - - - - - --- ------- - - - - - - -- -- X

ROBERTI A NUNEZ Plaintiff,

- V - THE CITY OF NEW YORK , NEW YORK CITY DEPA RTM E NT OF ENVIRO MENTAL PROTECTTO Defendants



### ------------------------------------------------------------- --------------------X

THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF ENV IRON MENTAL PROTECTION Third
- Party Plaintiffs,

-vCONSOLIDATED EDISON COMPA Y OF NEW YORK, INC. Third Party Defendants.



### --------------------------------------------------------------------------------X CONSOLIDATED EDISO N COMPA NY OF NEW YORK, I C. Second Third- Party Plaintiffs,
-vEW YORK CITY TRANS IT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORJTY Second Third Party Defendants.

------ ------ -- --------- ----- -- ----- ------------- ---- - -------------- ---- -------- -X PRESENT: 35 INDEX NO. MOTION SEQ. NO. l 17678/2009

DECISION 

### + ORDER 0 MOTION

Third-Party Index No. 595907/2021 003

The following e-filed documents, listed by NYSCEF document number (Motion 003) 43, 44, 45 , 46, 47 , 48, 49, 50 , 51 , 52 , 53, 54, 55,56, 57,58, 59 , 60,61,62 , 63 , 64, 65 were read on this motion to/for DISMISS For the reasons that fo ll ow, Second Third Party Defendants , NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORJTY's (Transi t) motion to dismiss the Second Third Party Complaint is granted.

117678/2009 ROBE RTINA NUNEZ vs. C ITY OF NEW YORK Motion No . 003
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### [* 1]NYSCEF DOC. NO. 67


### Background and Procedural History INDEX NO. 117678/2009 RECEIVED NYSCEF: 03/27/2024

This personal injury matter arises out of a December 24 , 2008 incident wherein Plaintiff ROB ERTINA NUNEZ, alleges that she fell due to a defective sidewalk/curb condition near a bus stop at 3397 Broadway in Manhattan (NYSCEF Doc. 44). On or about December 17, 2009, Plaintiff's commenced this action by filing the summons and complaint against Defendants, the CITY OF EW YORK (City), NEW YORK CITY DEPARTME T OF ENVIRO MENTAL PROTECTION (DEP) and TRANSIT YSCEF Doc. 42). Nearly seven year later, a request for a Preliminary Conference with the court was filed on October 7, 2016 and the conference was held on December 7, 2016 YSCEF Doc. 42). Counsels during oral arguments before this Court did not explain such delay . The Court however notes that this matter was not deemed abandoned. Nor was any motion filed by Defendants to dismiss for failure to prosecute. Further, it was not until August 13, 2020 that part ofthe papers in the action were converted to electronic filing. 

### By Decision and Order by Sokoloff

### J, dated September 28 , 2017, Tran sit's summaryjudgment motion was granted. Therein, it was he ld that TRANSIT had established its 

### primafacie burden in showing that it did not own, operate, maintain, manage or control the area where the accident allegedly occurred. In support, Transit submitted an affidavit from one of it arch itects, attesting that based upon a search of it records, and a review of Plaintifrs notice of claim, including the photograph annexed to
same, TRANS IT did not own, maintain , operate or control the sidewalk /curb in front of 3397 Broadway , the alleged accident location (NYSCEF Doc. 47). The decision was not appealed. On March I, 2021, over I I years after this matter was commenced, over four years after the Preliminary Conference was held, and nearly three and a half years after TRANSIT was dismissed from the action, Defendants CITY and DEP commenced a third-party action against

11767812009 ROBERTINA NUNEZ vs . CI TY OF NEW YORK Motion No. 003
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### [* 2]NYSCEF DOC. NO. 67 INDEX NO. 117678/2009 RECEIVED NYSCEF: 03/27/2024

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. (CON ED) for contribution, common-law indemnification, and contractual indemnification (NYSCEF Doc. 4). Third Party Defendant, CON ED then on October 5, 2021, commenced a Second Third-Party action against TRANSIT seeking contribution and common-law indemnification on the basis that TRANSIT was negligent in properly maintaining a manhole cover (NYSCEF Doc. 12). TRANSIT then timely moved to dismiss (Motion Seq. 2). Following oral arguments on Motion Seq. 2, the motion was denied with leave to refile upon all pleadings, motion papers and orders being fully converted to e-filing. TRANSIT now again in Motion Seq. 3 moves by notice ofmotion to dismiss the Second ThirdParty Compliant pursuant to CPLR 3211 (a)(7) for failure to state a cause of action and pursuant to 3211 (a)(5) based upon res_judicata. Con Ed and Plainti 

## rr oppose. Discussion In deciding a motion to dismiss for a failure to state a cause of action pursuant to CPLR 32 l l(a)(7), initially, the sole criteria to consider is whether the pleading state a cause of action, and if from its four corners factual allegations arc discerned which taken together manifest any cause ofaction cognizable at law (Cuggenheimer v. Ginzburg, 43 NY2d 268 [ 1977]; Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Co., Inc., 37 NY3d 169 [2021]; Leon v. Martinez, 84 NY2d 83 

## l1994]). Further, when evidentiary material is considered, the criteria is whether the proponent ofthe pleading has a cause of action, not whether he has stated one (Guggenheimer). Here, Con ED's third Party Action against TRANSIT is based not on Plaintiff's theory that TRANSIT was negligent based on ownership and maintaining the sidewalk but rather on the basis that TRANSIT was negligent in properly maintaining a manhole cover. Upon review ofthe court file, a defective manhole theory as to the cause of Plaintifrs accident emerges for the first time, after over 11 years of I itigation in Plaintiffs June 24, 2021 bill ofparticulars

117678/2009 ROB ERTi NA NU NEZ vs. CITY OF NEW YORK Motion No. 003
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### [* 3]NYSCEF DOC. NO. 67 INDEX NO. 117678/2009 RECEIVED NYSCEF: 03/27/2024
(NYSCEF Doc. 34). Significantly, no transcript, affidavit or marked photo was submitted showing that the condition which caused Plaintiff to trip and fall concerned a manhole cover or was adjacent to a manhole cover or otherwise involved a manhole cover. Further based on Plaintiffs notice or claim (NYSCEF Doc. 45), complaint (NYSCEF Doc. 42) and Plaintiff's initial October 7, 2016 bill ofparticulars (NYSCEF Doc. 42), she allegedly suffered injuries due to tripping and falling on a dangerous condition on the sidev.-·alk/curb that consisted or a broken, raised, depressed trap-like condition with missing pieces and imbeddcd snow and ice as she walked along the sidewalk near 3397 Broadway. Also, Plaintiffs claims against TRANSIT were based
on negligence of its ownership, operation, management, maintenance and control ofthe sidewalk/curb. Accordingly, even giving CON ED and Plaintiff the most favorable inferences and accepting their affidavits that TRANSIT may have owned the alleged manhole cover on the date of Plaintiffs alleged accident, there is no credible evidence showing that Plaintifrs accident was caused by any defective in the manhole (see 

### Guggenheimer, 43 NY2d 268; 

### Leon, 84 "\"Y2d 83). Thus, as CON ED's contribution and common-law indemnification claims hinge on TRANSIT's alleged negligence, and as TRANSIT cannot be found negligent as TRANSIT did not own, operate, maintain, manage or control the sidewalk and curb where this accident occurred, and as it is pure speculation to assert TRANSIT owned and/or controlled a manhole cover 

### which may have been involved in Plaintiffs accident, any viable causes of action against TRANSIT 

### fai!. As this Court has found that CON ED cannot substantiate a cause of action for contribution or common law indemnification premises upon TRANSIT's negligence, dismissal pursuant to CPLR 321 l (a)(7) is warranted. Further this Court does not reach the branch of TRANSIT's motion seeking dismissal pursuant to CPLR 3211 (a)(5). 

### It is hereby

11767812009 ROBERTI NA NUNEZ vs. CITY OF NEW YORK Motion No. 003
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### [* 4]NYSCEF DOC. NO. 67 INDEX NO. 117678/2009 RECEIVED NYSCEF: 03/27/2024

ORDERED that Defendants NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORlTY's motion to dismiss the Second Third-Party complaint is granted; and it is further ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further ORDERED that counsel for Defendants NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORITY shall serve a copy of this order with notice of entry upon all parties within 30 days, and upon the Clerk ofthe Court and the Clerk ofthe General Clerk's Office, who are directed to mark the court's records to reflect the change in the caption herein; and it is further ORDERED that such service upon the Clerk ofthe Court and the Clerk ofthe General Clerk's Office shall be made in accordance with the procedures set forth in the 

### Protocol on Courthouse and County Clerk Proceduresfor /<;/ectronicaily Filed Cases (accessible at the "E-Filing" page on the 

### court's website).

3!1312024

DATE CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED

### □ DENJED SETTLE ORDER INCLUDES TRANSFER/REASSIGN 11767612009 ROBERTINA NUNEZ vs. CITY OF NEW YORK Motion No. 003

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# )
DENISE M DOMINGUEZ, J.S.C. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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