Reid v City of New York

2024 NY Slip Op 30011(U)

January 2, 2024

Supreme Court, New York County

Docket Number: Index No. 400032/2014

Judge: Judy H. Kim

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.
INDEX NO. 400032/2014

NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 01/02/2024

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SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. JUDY H. KIM 

Justice 

--------------------.X 

MARGARET REID, 

Plaintiff, 

- V -

THE CITY OF NEW YORK, MADISON SQUARE GARDEN, 

L.P., MSG HOLDINGS, L.P., THE MADISON SQUARE 

GARDEN COMPANY, MADISON SQUARE GARDEN 

CENTER, INC.,DEFOE CORP., 

Defendant. 

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

PART 05RCP 

INDEX NO. 400032/2014 

MOTION DATE 05/17/2023 

MOTION SEQ. NO. 005 

DECISION + ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 005) 39, 40, 41, 42, 43, 

44,45,46,47,48,49, 50, 51,52, 53, 54, 59,67 

Were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER) 

Upon the foregoing documents, the motion by defendants Madison Square Garden L.P., 

MSG Holdings, L.P., the Madison Square Garden Company, and Madison Square Garden Center, 

Inc.'s (collectively, "MSG"), pursuant to CPLR §3212, for summary judgment dismissing 

plaintiffs complaint as against it is denied for the reasons set forth below. 

On September 26, 2012, plaintiff commenced this action alleging that on October 26, 2011, 

I 

she tripped and fell on a raised portion of the "sidewalk, path, and/or walkway" in front of 

Pennsylvania Station, specifically, at the northeast corner of West 31st Street, near its intersection 

with Eighth Avenue, New York, New York, sustaining injuries (NYSCEF Doc. Nos. 42 [Bill of 

Particulars at 115-6]) and 43 [Compl. at 1114-20]). Plaintiff asserts negligence claims against the 

400032/2014 REID, MARGARET vs. CITY OF NEW YORK 

Motion No. 005 

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City of New York and MSG1

, alleging that these defendants caused and created the defect at issue 

and failed to remedy same despite having actual or constructive notice thereof and, as pertinent 

here, that MSG violated Administrative Codes §§19-138, 19-146, and 19-152 (NYSCEF Doc. 

Nos. 42 [Bill of Particulars at ~14] and 43 [Compl. at ~~23-58]). 

· On October 22, 2012, the City interposed an answer asserting crossclaims against MSG for 

contribution and indemnification (NYSCEF Doc. No. 45 [Answer at ~13]). 

At her examination before trial ("EB T"), plaintiff testified that, after crossing east on 

Eighth Avenue to proceed into the Pennsylvania Station entrance located at the comer of West 

31st Street and Eighth Avenue, she stepped onto the sidewalk and immediately fell: 

Q Did you step up onto the sidewalk before your accidenthappened at that point? 

A When I went to, I went to step up on the sidewalk, and it was something I don't 

know what was there, and I just fell. 

Q When you stepped on the sidewalk at31st Street and 8th Avenue, was there like 

a sloped ramp so that people like with wheelchairs could go on, a little cutout? 

A I don't know what that was but it was something there that like maybe the 

sidewalk was up a little bit. 

Q After you put your left foot up, was your right foot still in the roadway? 

A I don't remember. All I know I was on the ground. 

Q After you put your left foot up when you came from the roadway, how many 

steps did you take before you fell? 

1 Plaintiff also asserts negligence claims against defendant Defoe Corp. However, Defoe Corp. was granted summary 

judgment pursuant to a decision and order dated March 28, 2019 (NYSCEF Doc. No. 31 ). 

400032/2014 REID, MARGARET vs. CITY OF NEW YORK 

Motion No. 005 

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A I don't remember. 

Q Did you take more than one or did you fall as soon as you stepped up? 

A As soon as I stepped up I fell. 

Q When you put your left foot up right before you fell, did you feel it hit anything? 

A Yeah, the ground. 

Q Did you feel your right foot hit anything? 

A I don't remember, but all I remember is I remember I was on the ground. 

Q So the direction you were walking when you fell, was that towards Penn Station, 

or were you walking was Penn Station on your right or Penn Station on your left? 

A No, I was going straight to Penn Station. I was going straight through the doors 

like I normally go straight through the doors, and when I went to get on the, to go 

on the sidewalk, that is when I, something I don't know what it was there, it was 

either, it was up a little bit, the sidewalk was up a little bit and I fell. Next thing I 

know I was on the ground. 

Q When you say the sidewalk was up a little bit, how do you know that? 

A I guess because it looked like it was up a little bit there. 

Q Did you see that before you fell, while you were falling, after you fell? 

A While I was falling yes, when I was falling it looked like the sidewalk and then 

all I did was went down like that. 

Q While you were falling what did you see? 

A Nothing but the ground. 

Q You said while you were falling you saw it was up a little bit; tell me exactly 

what you saw while you were falling. 

A It looks like maybe the sidewalk was up a little bit one part was a little bit higher 

than the other part. 

400032/2014 REID, MARGARET vs. CITY OF NEW YORK 

Motion No. 005 

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Q How high? 

A ... Maybe about, maybe I couldn't say like a few, little inch, [an] inch or two or· 

so from the ground. 

Q An inch? 

A Or two. 

Q How did that cause you to fall? 

A I guess when I went to step up and I must have, I don't know, my I don't know 

how it made me fall, I really don't. I don't understand how I fell. All I know is that 

I fell. 

(NYSCEF Doc. No. 26 [Reid EBT at pp. 119~128] [emphasis added]). 

No photographs identifying the alleged defect or its precise location were marked at 

plaintiff's EBT or submitted in support or in opposition to the instant motion. 

MSG now moves for summary judgment dismissing plaintiff's complaint and all 

crossclaims as against it, arguing2 that it cannot be held liable for negligence in this action because 

plaintiff's EBT testimony establishes that she cannot identify the defective condition that 

precipitated her fall without resorting to speculation. 

Plaintiff opposes MSG's motion, arguing that plaintiff has sufficiently identified that a 

raised portion of the sidewa.lk caused her accident and that MSG has failed to establish that it did 

not exercise any control over the subject sidewalk. 

2 The Court rejects MSG assertion that it can be determined, at this juncture, that Administrative Codes §§ 19-138 and 

19-146 are inapplicable in this case. To the extent that Administrative Code §-l 12[13]'s definition of "street" 

encompasses a sidewalk, Administrative Codes§ 19-138 and 19-146, which make it "unlawful for any person to break 

or otherwise injure any street" or cause any part of the street to be raised without permission, respectively, are 

applicable (See Crafts v City of New York, 2008 NY Slip Op 30823[U], *9-10 [Sup Ct, NY County 2008]). 

400032/2014 REID, MARGARET vs. CITY OF NEW YORK 

Motion No. 005 

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DISCUSSION 

"The proponent of a summary judgment motion must make a prima facie showing of 

entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the 

absence of any material issues of fact. Failure to make such prima facie showing requires a denial 

of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been 

made, however, the burden shifts to the party opposing the motion for summary judgment to 

produce evidentiary proof in admissible form sufficient to establish the existence of material issues 

of fact which require a trial of the action" (Alvarez v Prospect Hosp .. 68 NY2d 320, 324 [1986] 

[internal citations omitted]). 

As an initial matter, the Court notes that MSG takes no position as to whether it owned the 

portion of the sidewalk where plaintiff fell, whether it lacked actual or constructive notice of any 

defective condition on that sidewalk, or whether it caused or created any such defect. Rather, MSG 

argues only that it cannot be held liable in this action because plaintiff cannot identify the defective 

condition that precipitated her fall. The Court disagrees. 

While "[i]t is well settled that a defendant is entitled to summary judgment as a matter of 

law when a plaintiff provides testimony that he or she is unable to identify the defect that caused 

his or her injury" (Siegel v City of New York, 86 AD3d 452, 454-455 [1st Dept 2011]), plaintiff 

is "not required to prove precisely which particular defect in the sidewalk caused her to fall in 

order to avoid summary judgment" (Kovach v PJA, LLC, 128 AD3d 445, 445 [1st Dept 2015] 

[internal quotations omitted]) or identify the precise location of her fall (See Tomaino v 209 E. 

84th St. Corp .. 72 AD3d 460, 461 [1st Dept 201 O]). Rather, plaintiff need only "demonstrate a 

causal nexus between a defect in the sidewalk ... and her fall" to defeat summary judgment 

400032/2014 REID, MARGARET vs. CITY OF NEW YORK 

Motion No. 005 

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(Kovach v PJA, LLC, 128 AD3d 445,445 [1st Dept 2015]). 

Plaintiff has satisfied this standard. Her EBT testimony that, upon stepping onto the 

sidewalk at the comer of West 31st Street and Eighth A venue, she fell and then noticed that the 

"sidewalk was up a little bit," is sufficient to identify the defective condition that caused her to fall 

(See Kovach v PJA, LLC, 128 AD3d 445,445 [1st Dept 2015] [plaintiff's testimony that her foot 

hit a "bump" in the sidewalk sufficient to identify defective condition that precipitated her fall 

despite being unable to identify same in photographs]; see also Cherry v Daytop Vil.. Inc., 41 

AD3d 130, 131 [1st Dept 2007]; Martinez v City of New York, 190 AD3d 561,561 [1st Dept 

2021 ]). To the extent plaintiff vacillated, during this testimony, between stating that she did not 

know what precipitated her fall and attributing her fall to a raised sidewalk, this "inconsistenc[y J 

in plaintiff's testimony as to the cause of her fall present[s] credibility issues for the jury's 

determination" (Martinez v City of New York, 190 AD3d 561,561 [1st Dept 2021]). 

Accordingly, it is 

ORDERED that the Madison Square Garden LP., MSG Holdings, L.P ., the Madison 

Square Garden Company, and Madison Square Garden Center, Inc.'s motion for summary 

judgment is denied; and it is further 

ORDERED that, within fifteen days of the date of this decision and order, counsel for 

plaintiff shall serve a copy of this decision and order, with notice of entry, on defendants as well 

as the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's 

Office (60 Centre Street, Room 119); 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 

400032/2014 REID, MARGARET vs. CITY OF NEW YORK 

Motion No. 005 

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Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "EFiling" page on this Court's website at the address www.nycourts.gov/supctmanh). 

This constitutes the decision and order of the Court. 

1/2/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: ~ CASE DISPOSED 

GRANTED 0 DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

400032/2014 REID, MARGARET vs. CITY OF NEW YORK 

Motion No. 005 

' I 

NO INAL DISPOSITION 

GRANTED IN PART , 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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