### 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 NEWYORK, 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 September26, 2012, plaintiffcommencedthis actionallegingthat onOctober26, 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 ofWest 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]). Plaintiffasserts negligence claims against the

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2 of 7 City ofNew York and MSG 1, alleging that these defendants caused and created the defect at issue and failed to remedy same despite having actual or constructive notice thereofand, as pertinent here, that MSG violated Administrative Codes §§19-138, 19-146, and 19-152 (NYSCEF Doc. Nos. 42 [Bill ofParticulars at ~14] and 43 [Compl. at ~~23-58]).

·OnOctober22, 2012, the City interposed ananswer asserting crossclaims againstMSGfor contribution and indemnification (NYSCEF Doc. No. 45 [Answer at ~13]). At her examination before trial ("EBT"), plaintiff testified that, after crossing east on Eighth Avenue to proceed into the Pennsylvania Station entrance located at the comer ofWest 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 thatpoint?

A When I went to, I went to step up onthe sidewalk, and it was something I don't know what was there, and Ijust fell.
Q Whenyou stepped onthe 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 youputyour left foot up, was yourright foot still inthe roadway? A I don'tremember. All I know I was onthe 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 Plaintiffalso asserts negligence claims against defendant Defoe Corp. However, Defoe Corp. was granted summary judgmentpursuantto a decision and order dated March 28, 2019 (NYSCEF Doc. No. 31).

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3 of 7 A I don't remember. Q Didyoutake more thanone or didyou fall as soon as you stepped up? A As soon as I stepped up I fell.
Q Whenyouput your leftfoot upright beforeyoufell, didyou feel ithit anything? A Yeah, the ground. Q Did you feel your right foothit anything? A I don't remember, but all I remember is I remember I was on the ground.
Q So the directionyou werewalking whenyou fell, was thattowards Penn Station, orwere you walking was Penn Station on yourright or Penn Station onyour 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 onthe ground. Q Whenyou say the sidewalk was up a little bit, howdo you know that? A I guess because it looked like it was up a little bitthere. 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 didwas went down like that. Q While you were falling what did you see? A Nothing butthe 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 Itlooks like maybe the sidewalk was up a little bitonepartwas a little bithigher than the otherpart.

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4 of 7 Q How high?

A
... Maybe about, maybe I couldn't say like a few, little inch, [an] inch ortwo or· so from the ground. Q An inch? A Ortwo.
Q Howdidthat cause you to fall? A I guess when I went to step up and I must have, I don'tknow, my I don't know howit made me fall, I really don't. I don't understandhow 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'sEBT or submitted in support orin opposition to the instant motion. MSG now moves for summary judgment dismissing plaintiff's complaint and all crossclaims as againstit, arguing2that itcannotbeheld liable for negligence inthis actionbecause plaintiff's EBT testimony establishes that she cannot identify the defective condition that precipitatedher fall without resorting to speculation. Plaintiff opposes MSG's motion, arguing that plaintiff has sufficiently identified that a raised portion ofthe sidewa.lk caused her accident and that MSG has failed to establish that it did not exercise any control overthe subject sidewalk.

2 The Courtrejects MSG assertion that it can be determined, at thisjuncture, 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 ofNew York, 2008 NY Slip Op 30823[U], *9-10 [Sup Ct, NY County 2008]).

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5 of 7 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 ofany material issues offact. Failure to make suchprima facie showing requires a denial ofthe motion, regardless ofthe sufficiency ofthe opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiaryproofin admissible form sufficientto establishthe existence ofmaterial issues offact which require a trial ofthe action" (Alvarez v Prospect Hosp
.. 68 NY2d 320, 324 [1986] [internal citations omitted]). As an initial matter, the Courtnotes thatMSGtakes no position as to whether it ownedthe portion ofthe sidewalk where plaintifffell, whether it lacked actual or constructive notice ofany defective conditiononthat sidewalk, orwhetheritcaused or created any suchdefect. Rather, MSG argues only thatit cannotbe held liable inthis actionbecauseplaintiffcannot identify the defective condition thatprecipitated her fall. The Court disagrees. While "[i]t is well settled that a defendant is entitled to summaryjudgment as a matter of law when a plaintiffprovides testimony that he or she is unable to identify the defect that caused his or her injury" (Siegel v City ofNew 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 summaryjudgment" (Kovach v PJA, LLC, 128 AD3d 445, 445 [1st Dept 2015] [internal quotations omitted]) or identify the precise location ofher fall (See Tomaino v 209 E. 84th St. Corp
.. 72 AD3d 460, 461 [1st Dept 201 O]). Rather, plaintiffneed only "demonstrate a causal nexus between a defect inthe sidewalk
... and her fall" to defeat summaryjudgment

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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 ofWest 31st Street and Eighth Avenue, she fell and then noticed that the "sidewalkwasup a littlebit," is sufficientto identify the defective conditionthat 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 ofNew York, 190 AD3d 561,561 [1st Dept 2021]). To the extent plaintiffvacillated, 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 ofNew 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 judgmentis denied; and it is further ORDERED 

### that, within fifteen days ofthe date ofthis decision and order, counsel for plaintiffshall serve a copy ofthis decision and order, with notice ofentry, on defendants as well
as the Clerk ofthe Court (60 Centre Street, Room 141B) and the Clerk ofthe General Clerk's Office (60 Centre Street, Room 119); and itis 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

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### Courthouse and County Clerk Proceduresfor Electronically Filed Cases (accessible at the "EFiling" page on this Court'swebsite at the address www.nycourts.gov/supctmanh). This constitutes the decision and order ofthe Court.

1/2/2024

DATE CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE:



# ~ CASE DISPOSED GRANTED 

# 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

400032/2014 REID, MARGARETvs. CITY OF NEWYORK Motion No. 005
' I NO INAL DISPOSITION GRANTED IN PART , SUBMIT ORDER FIDUCIARY APPOINTMENT 

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