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 

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ROBERTI A NUNEZ 

Plaintiff, 

- V -

THE CITY OF NEW YORK, NEW YORK CITY 

DEPARTM ENT OF ENVIRO MENTAL PROTECTTO 

Defendants 

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THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT 

OF ENVIRONMENTAL PROTECTION 

Third- Party Plaintiffs, 

-vCONSOLIDATED EDISON COMP A Y OF NEW YORK, INC. 

Third Party Defendants. 

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CONSOLIDATED EDISON COMPANY OF NEW YORK, I C. 

Second Third- Party Plaintiffs, 

-vEW YORK CITY TRANSIT AUTHORITY and 

METROPOLITAN TRANSPORTATION AUTHORJTY 

Second Third Party Defendants. 

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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 (Transit) motion to 

dismiss the Second Third Party Complaint is granted. 

117678/2009 ROBERTINA NUNEZ vs. CITY OF NEW YORK 

Motion No. 003 

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Page 1 of 5 

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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 

ROBER TINA NUNEZ, alleges that she fell due to a defective sidewalk/curb condition near a bus stop 

at 3397 Broadway in Manhattan (NYSCEF Doc. 44). 

On or about December 17, 2009, Plaintiff's commenced this action by filing the summons and 

complaint against Defendants, the CITY OF EW YORK (City), NEW YORK CITY DEPARTME T 

OF ENVIRO MENTAL PROTECTION (DEP) and TRANSIT YSCEF Doc. 42). 

Nearly seven year later, a request for a Preliminary Conference with the court was filed on 

October 7, 2016 and the conference was held on December 7, 2016 YSCEF Doc. 42). Counsels 

during oral arguments before this Court did not explain such delay. The Court however notes that this 

matter was not deemed abandoned. Nor was any motion filed by Defendants to dismiss for failure to 

prosecute. Further, it was not until August 13, 2020 that part of the papers in the action were converted 

to electronic filing. 

By Decision and Order by Sokoloff J, dated September 28, 2017, Transit's summary judgment 

motion was granted. Therein, it was held that TRANSIT had established its prima facie burden in 

showing that it did not own, operate, maintain, manage or control the area where the accident allegedly 

occurred. In support, Transit submitted an affidavit from one of it architects, attesting that based upon 

a search of it records, and a review of Plaintifrs notice of claim, including the photograph annexed to 

same, TRANSIT 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. CITY OF NEW YORK 

Motion No. 003 

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Page 2 of s 

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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 of motion 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 of action 

cognizable at law (Cuggenheimer v. Ginzburg, 43 NY2d 268 [ 1977]; Himmelstein, McConnell, 

Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Co., Inc., 37 NY3d 169 [2021]; Leon v. 

Martinez, 84 NY2d 83 l 1994]). Further, when evidentiary material is considered, the criteria is whether 

the proponent of the pleading has a cause of action, not whether he has stated one (Guggenheimer). 

Here, Con ED's third Party Action against TRANSIT is based not on Plaintiff's theory that 

TRANSIT was negligent based on ownership and maintaining the sidewalk but rather on the basis that 

TRANSIT was negligent in properly maintaining a manhole cover. 

Upon review of the court file, a defective manhole theory as to the cause of Plaintifrs accident 

emerges for the first time, after over 11 years of I itigat ion in Plaintiffs June 24, 2021 bill of particulars 

117678/2009 ROB ERTi NA NU NEZ vs. CITY OF NEW YORK 

Motion No. 003 

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Page 3 of 5 

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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 of particulars (NYSCEF Doc. 42), she allegedly suffered 

injuries due to tripping and falling on a dangerous condition on the sidev.-·alk/curb that consisted or a 

broken, raised, depressed trap-like condition with missing pieces and imbeddcd snow and ice as she 

walked along the sidewalk near 3397 Broadway. Also, Plaintiffs claims against TRANS IT were based 

on negligence of its ownership, operation, management, maintenance and control of the sidewalk/curb. 

Accordingly, even giving CON ED and Plaintiff the most favorable inferences and accepting 

their affidavits that TRANSIT may have owned the alleged manhole cover on the date of Plaintiffs 

alleged accident, there is no credible evidence showing that Plaintifrs accident was caused by any 

defective in the manhole (see Guggenheimer, 43 NY2d 268; Leon, 84 "\"Y2d 83). 

Thus, as CON ED's contribution and common-law indemnification claims hinge on 

TRANSIT's alleged negligence, and as TRANSIT cannot be found negligent as TRANSIT did not 

own, operate, maintain, manage or control the sidewalk and curb where this accident occurred, and as 

it is pure speculation to assert TRANSIT owned and/or controlled a manhole cover which may have 

been involved in Plaintiffs accident, any viable causes of action against TRANSIT fai!. 

As this Court has found that CON ED cannot substantiate a cause of action for contribution or 

common law indemnification premises upon TRANSIT's negligence, dismissal pursuant to CPLR 

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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Page 4 of 5 

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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 of the Court and the Clerk of the General 

Clerk's Office, who are directed to mark the court's records to reflect the change in the caption herein; 

and it is further 

ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's 

Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and 

County Clerk Procedures for /<;/ectronicaily Filed Cases (accessible at the "E-Filing" page on the 

court's website). 

3!1312024 

DATE 

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 

□ OTHER 

□ REFERENCE 

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