McKnight v. New York City Tr. Auth.

McKnight v New York City Tr. Auth. 2024 NY Slip Op 32431(U) July 15, 2024 Supreme Court, New York County Docket Number: Index No. 450735/2021 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.

-t • . . , . . ~ . - =-;.- 7---.-. INDEX NO. 450735/2021 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 07/15/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ PART 35 Ju.\'fice ------------------------X 45 073 5/2021 INDEX NO. DONNA MCKNIGHT MOTION SEQ. :'1/0. 004 Plaintiff

-v- DECISION + ORDER ON NEW YORK CITY TRANSIT AUTHORITY, NEW YORK cnY MOTION METROPOLITAN TRANSPORTATION AUTHORITY

Defendants ----------- ---------------------------------------------------------------------- X

The following c-filcd documents, listed by NYSCEF document number (Motion 004) 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87,88, 89,90, 91, 92,93, 94 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)

For the reasons that follow, Plaintiff's second motion for summary judgment pursuant to

CPLR §3212 (Motion Seq. 4) is denied and Defendants' cross-motion for summary judgment is

also denied.

This personal injury matter arises out of a slip and fall incident in a subway station.

Plaintiff alleges that on August 22, 2019, she slipped and fell on a stairway at the Canal Street

Station in New York County because of either stepping on wet paint or stepping on a step that was

negligently painted.

Background

In the notice of claim, Plaintiff alleges she slipped on a step that was improperly, unsafely

and negligently painted. Four color photos depicting the step and the staircase were annexed to the

notice of claim 0-JYSCEF Doc. 78).

During a statutory hearing on January 2, 2020, Plaintiff testified to slipping on wet paint

and that there were no signs posted. Plaintiff further testified that both l~MS and the police arrived

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at the scene and the Plaintiff alleges reporting only the slip and fall incident but not mentioning

the wet paint. Further, during the hearing when asked, Plaintiff did not recall if the sneakers worn

on the day of the accident had paint on them (NYSCEF Doc. 71).

At Plaintiffs deposition on August 19, 2021, over a year and seven months later, Plaintiff

again testified slipping on wet paint. Yet at the deposition unlike at the statutory hearing, Plaintiff

tcsti fied telling EMS and the police about the wet paint. When asked, Plaintiff further testified that

that she did not have any paint on her clothing as a result.of the fall (NYSCEF Doc. 70).

Neither a police report, ambulance call sheet, or any other accident report was submitted

with this motion.

Plaintiffs initial summary judgment motion was denied with leave to refile and explain

why the motion was submitted late. Plaintiff attempted to explain it in Motion Seq. 3 rather than

in the instant motion. Nonetheless, upon review of the documents submitted, Plaintiff has not

established the prima.facie burden of entitlement to judgment as a matter of law.

Plaintiff.,; Summary Judgment ."41otion

Pursuant CPLR §3212, any party in any action, including in a negligence action, may

move for summary judgment (CPLR §3212 la], Andre v. Pomeroy, 35 N.Y.2d 361 119741). Yet,

the party seeking summary judgment has the high burden of establishing entitlement to judgment

as a matter of law (see CPLR §3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320 [I 986], see also

Zuckerman v City of New York, 49 NY2d 557 [1980]). It is only when this burden is met, that it

then shifts to the opposing side to produce evidence the existence of material issues of fact

warranting a trial (Alvarez 68 NY2d 320).

A plaintiff establishes a prima facie case of negligence by showing with admissible

evidence that a (1) defendant mved plaintiff a duty care, (2) that the duty breached, and (3) an

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injury resulted (Solomon by Solomon v. City of New York, 66 NY2d 1026 [ 1985]). To establish a

prima facie case regarding a slip and fall incident, a plaintiff must show that a defendant either

created a dangerous condition or had actual or constructive knowledge of it and did not address it.

(/,emonda v. Sutton, 268 AD2d 3 83 I 1st Dept 2000]: Mullin v. 100 Church /JC, 12 AD3d 263

[1st Dept 20041).

Here, it is uncontrovcrtcd that Defendants, in their role as leaseholders, are responsible for

operating and maintaining the subway system and owe their riders a duty of care of keeping the

areas in a reasonably safe condition. It is also not contested that any yellow paint on the step was

painted by Defendants. What is at issue is whether the condition complained ofby Plaintiff was in

fact actionable.

It has long been held, that the question of whether or not a dangerous or defective condition

exists depends on the peculiar facts and circumstances of each case and is usually a question of

fact for a.jury (Schechtman v. Lappin, 161 AD2d 118 l_lst Dept 1990]; Trincere v. Cnty. ofSujfolk,

90 NY2d 976 (1997); Lansen v. 5'J, Green Realty Corp., 103 AD3d 521 [1st Dept 2013]).

Plaintiff argues that the yellow paint on the step was dangerous as it was too slippery and

violated internal NYCTA guidelines. Yet, Plaintiffs papers are filled with discrepancies requiring

a jury to assess credibility and decide if a wrong was in fact committed based on Plaintiffs dual

theories of the accident, slipping on wet paint and/or or that the anti-skid protection was covered.

Plaintiff claims to have slipped on wet and slippery paint and the Plaintiffs expert claims it was

defective, dry paint that did not provide sufficient traction on the step that caused the accident.

Plaintiff specifically testified at both the statutory hearing and the deposition slipping on

wet paint. However, Plaintiff relies upon the affidavit of Architect D . .Jimenez, to claim that the

step \Vas dangerous because the paint on the step extended 11 inches, more than Defendant's

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analysis (see Friberg v. City ofNew York, 193 AD3d 451 [1st Dept 2021!; Clarke v. Verizon New

York. inc., 138 AD3d 505l 1st Dept 2016]), and is not supported by references to specific and

applicable rules, regulations, codes, ordinances or industry standards or practices. Thus, Plaintiff's

expert's opinion is speculative and conclusory (RoatwriJ?ht v. New York City Transit Auth., 304

A D2d 421 [1st Dept 2003 J; Siegfried v. W 63 Empire Assoc.1·., LLC, 145 AD3d 456 [l ,t Dept

2016J). Accordingly, PlaintiH~ through the submitted documents, has not eliminated material

questions of facts to establish a prima facie burden of entitlement to judgment as a matter of law.

Defendants' Cross-1Wotionfor Summary Judgment

Here, the Defendants argue that Plaintiffs complaint should be dismissed because a claim

that a walking surface was "slippery", without evidence as to who or why the surface was slippery,

is not actionable. Defendants rely on several cases. Yet, in lvfurphy v. Conner, 84 NY2d 969

(1994), unlike here, the plaintiff claimed that the floor was smooth and offered no further evidence

regarding why or how it was dangerous. In Sims v. 3 349 Hull Ave. Realty Co. LLC, 106 AD3d 466

(1st Dept 2013 ), the plaintiff simply described the condition as worn and in DeMartini v. Trump

76 7 5th Ave., LLC, 41 AD3d 181 (1st Dept 2007), the plaintiff only described the condition at

issue as "inherently slippery". I Jowever, here, Plaintiff offered evidence in the form of her

testimony at the statutory hearing and deposition alleging that the step was wet with paint. Plaintiff

also submitted the affidavit of an expert.

Notably, on a motion for summary judgment, it is not enough for a defendant to identify

problems or issues with a plaintiffs negligence case. Rather, it is the defendant's burden to show

their lack of negligence and/or it was not the proximate cause of Plaintiffs accident as a matter of

law (see Hairston v. Liberty Behav. Mgmt. Corp., 157 AD3d 404 [F1 Dept 2018]; Torres v. Merrili

Lynch Purchasing, 95 AD3d 741 I 1st Dept 2012]; Artalyan, Inc. v. Kitridge Realty Co., 79 AD3d

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546 [1 st Dept 201 O]). Accordingly, Defendants papers do not establish entitlement to judgment as

a matter of law.

Accordingly, it is hereby

ORDERED that Plaintiff's motion for summary judgment is denied; and it is further

ORDERED that Defendants ' cross-motion for summary judgment is also denied; and it is further ORDERED that counsel for Plaintiff within 20 days shall serve a copy of this order with notice of entry upon all parties and the Clerk of the Court in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures j(Jr Electronically Filed Cases (accessible at the "E-Filing" page on the court's website).

7/15/2024 DATE

~ CHECK ONE: CASE DISPOSED '.\ON-FI NAL DISPOSITION

GRANTED 0 DENIED GRA'.\TED IN PART □ OTHF,R APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINT:\'iENT □ REFERENCF,

450735/202 1 MCKNIGHT, DONNA vs. NEW YORK CITY TRANSIT AUTHORITY ET AL Page 6 of 6 Motion No. 004

Footnotes

[3] of 6 [* 3] internal standards, and because the paint covered the anti-skid metal nosing that prevents slipping. The expert does not opine about any wet paint having caused the accident although the expert alleges visiting the scene approximately seven days after the alleged accident. Further, while much is mentioned about the paint extending more than 4 inches as mandated by Defendants' internal guidelines, no photos with measurements are provided reflecting the actual dimensions of the paint condition complained of. The expert states that the paint completely filled-in the metal nosing, yet no measurements, or any testing is referenced conclusively establishing this theory. Plaintiff's expert opines that the paint is slippery because it is glossy and contains no anti-skid materials. Yet, there is no showing how the expert reaches this conclusion. Additionally, the expert only relies upon Defendant's own internal guidelines and policies to assert that the paint was dangerous. However, it has long been held that a"[ v ]iolation of a company's internal rules is not negligence in and of itself: and where such rules require a standard that transcends reasonable care, breach cannot be considered evidence of negligence (Gilson v. Metro. Opera, 5 NY3d 574 [2005]). o code, rule, statute or other regulations are cited to by Plaintiff's expert as being violated by either the use of this particular paint or the placement/dimensions of the paint on the subject step. Nor are any industry standards provided. Finally, for a matter involving a slip and fall incident, wherein it is claimed by Plaintiff's expert that the paint on the subject step was rendered too slippery, no coefficient of friction testing of the step was performed. Therefore, upon review, Plaintiffs expert affidavit does not appear to have addressed the wet paint condition actually testified to by Plaintiff in this matter (Santoni v. Bertelsmann Prop. , Inc., 21 A.O3d 712 [1 st Dept 2005]), is not supported with evidence such as measurements, testing, clear photographs free of multiple interpretations, or other empirical data obtained by scientific 45073512021 MCKNIGHT, DONNA vs. NEW YORK CITY TRANSIT AUTHORITY ET AL Page 4 of 6 Motion No. 004 [* 4] 4 of 6

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