KAREEM CATES v. NEW YORK CITY TRANSIT AUTHORITY et al, 500277/2024, 10 (N.Y. Sup. Ct., Kings County Apr. 12, 2024) (2024)

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`FILED: KINGS COUNTY CLERK 04/12/2024 12:57 PM
`NYSCEF DOC. NO. 10
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`INDEX NO. 500277/2024
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`RECEIVED NYSCEF: 04/12/2024
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`3.
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`As set forth more fully below, Plaintiff clearly alleges that he was
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`physically assaulted by an unnamed passenger, not Defendants or their employees. It is
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`well settled that Defendants are not liable for such an incident.
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`PROCEDURAL HISTORY
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`4.
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`This action was commenced on January 3, 2024, by the filing of a
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`Summons and Verified Complaint, a copy of which is annexed hereto as Exhibit A.
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`5.
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`Issue was joined by Defendants by the filing of a Verified Answer on
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`February 23, 2024, a copy of which is annexed hereto as Exhibit B.
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`6. While an IAS judge has not been assigned and no depositions have been
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`held, Defendants now move to dismiss the Complaint pursuant to CPLR §§ 3212 and
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`3211(a)(7) because, respectively, 1) the materials annexed hereto, including Plaintiff’s
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`own allegations and testimony, establish as a matter of law that Defendants were not
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`negligent and 2) the Complaint fails to state a claim against Defendants for battery.
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`EVIDENCE IN SUPPORT
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`7.
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`8.
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`A copy of Plaintiff’s Notice of Claim is annexed hereto as Exhibit C.
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`A copy of the transcript of Plaintiff’s June 16, 2023 statutory hearing as
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`well as a July 26, 2023 letter requesting that the transcript be executed are annexed
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`hereto collectively as Exhibit D. As the transcript was not signed and returned within 60
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`days, this transcript may be used as though fully signed. See CPLR § 3116(a).
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`9.
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`A copy of the Certified Police Report regarding NYPD’s investigation of
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`the subject incident is annexed hereto as Exhibit E. As the report is certified and is not
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`cited for hearsay statements by unidentified individuals not subject to a business duty to
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`FILED: KINGS COUNTY CLERK 04/12/2024 12:57 PM
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`INDEX NO. 500277/2024
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`RECEIVED NYSCEF: 04/12/2024
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`report information, the report is admissible. See Yassin v. Blackman, 188 AD3d 62, 65
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`[2d Dept 2020]; see also Scott v. Kass, 48 AD3d 785, 785-786 [2d Dept 2008].
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`10. Plaintiff’s counsel confirmed via email that Plaintiff’s statutory hearing
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`transcript has not been signed. A copy of the email correspondence is annexed hereto
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`as Exhibit F.
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`CPLR § 3212
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`ARGUMENT
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`LEGAL STANDARD
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`11. On a motion for summary judgment pursuant to CPLR §3212, the movant
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`“must make a prima facie showing of entitlement to judgment as a matter of law,
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`tendering sufficient evidence to demonstrate the absence of any material issues of fact”.
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`Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]. Once the party moving for
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`summary judgment makes such a showing, the burden shifts to the party opposing the
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`motion to produce admissible evidence sufficient to raise a material issue of fact
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`requiring a trial. See Id.
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`12. When considering such a motion, the court must view the facts “in the light
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`most favorable to the non-moving party”. Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335,
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`339 [2011].
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`13. A summary judgment motion “should not be granted where the facts are in
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`dispute, where conflicting inferences may be drawn from the evidence, or where there
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`are issues of credibility”. Parisella v. Lazier, 2020 NY Slip Op 32856(U) [Sup. Ct. Bronx
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`Co. 2020]; see also Dolitsky v. Bay Isle Oil Co., 111 A.D.2d 366 [2d Dept 1985]. In other
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`FILED: KINGS COUNTY CLERK 04/12/2024 12:57 PM
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`INDEX NO. 500277/2024
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`RECEIVED NYSCEF: 04/12/2024
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`words, a party is entitled to summary judgment where it demonstrates that the cause of
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`action asserted against it has no merit and that there exists no triable issue of material
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`fact with respect to that party. See Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223,
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`413 N.Y.S.2d 141 [1978]; Weitzner v. Hensinger, Inc., 175 A.D.2d 832, 573 N.Y.S.2d
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`199 [2d Dept 1991].
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`14.
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`“[A] defendant moving for summary judgment dismissing one of the
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`plaintiff’s causes of action may generally sustain his or her prima facie burden by
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`negating a single essential element of that cause of action.” Poon v. Nisanov, 162
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`A.D.3d 804, 806 [2d Dept 2018] (quoting Nunez v. Chase Manhattan Bank, 155 A.D.3d
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`641, 643 [2d Dept 2017] (internal quotation marks omitted).
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`15. New York courts have consistently held that summary judgment is
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`appropriate in negligence actions such as the instant matter, where there is no merit to
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`the cause of action. See, e.g., Donadio v. Crouse-Irving Memorial Hosp., Inc., 75
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`A.D.2d 715 [4th Dept 1980]; Blake v. Gardino, 35 A.D.2d 1022 [3rd Dept 1970], aff’d 29
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`N.Y.2d 876 [1972].
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`CPLR § 3211
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`16. On a motion to dismiss pursuant to CPLR § 3211(a), “the facts pleaded
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`are presumed to be true, and the court must afford those allegations every favorable
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`inference and determine only whether the facts as alleged fit within any cognizable legal
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`theory.” Dickinson v. Igoni, 76 A.D.3d 943, 945 [2d Dept 2010].
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`17. However, the Court is not required to assume the truth of unsupported
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`legal conclusion and allegations contradicted by documentary evidence. See CPLR §
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`3211(a)(1); see also Greshin v. Sloane, 138 A.D.2d 569 [2d Dept 1988] (dismissing
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`FILED: KINGS COUNTY CLERK 04/12/2024 12:57 PM
`NYSCEF DOC. NO. 10
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`INDEX NO. 500277/2024
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`RECEIVED NYSCEF: 04/12/2024
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`pursuant to CPLR § 3211(a)(1) and (7) claims contradicted by a lease and bank
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`records); Meyer v Guinta, 262 AD2d 463, 464 [2d Dept 1999] (“It is well settled that bare
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`legal conclusions and factual claims which are flatly contradicted by the evidence are
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`not presumed to be true on a motion to dismiss for failure to state a cause of action.”).
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`POINT I
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`ADMISSIBLE EVIDENCE AND UNDISPUTED FACTS
`ESTABLISH AS A MATTER OF LAW THAT THE
`DEFENDANTS WERE NOT NEGLIGENT.
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`18.
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`To establish a prima facie case of negligence, a plaintiff must demonstrate
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`(1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury
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`proximately resulting therefrom. See Solomon v. City of New York, 66 N.Y.2d 1026,
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`1027 [1985].
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`A. Defendants had no duty to protect Plaintiff from a third-party assault.
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`19.
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`It is well-established that, unlike a common carrier, “[t]he New York City
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`Transit Authority owes no duty to protect a person on its premises from assault by a
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`third person, absent facts establishing a special relationship between the authority and
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`the person assaulted.” Weiner v. Metropolitan Transp. Auth., 55 NY2d 175, 178-179
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`[1982] (collecting cases) (internal citations omitted).
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`20.
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`“A ‘special relationship’ requires justifiable reliance by a plaintiff upon an
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`affirmative undertaking by the municipal defendant to act on the plaintiff's behalf.”
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`Jacobs v. NY City Tr. Auth., 138 AD3d 779, 779-780 [2d Dept 2016].
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`FILED: KINGS COUNTY CLERK 04/12/2024 12:57 PM
`NYSCEF DOC. NO. 10
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`INDEX NO. 500277/2024
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`RECEIVED NYSCEF: 04/12/2024
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`21. A passenger simply walking through a subway station has no special
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`relationship that would warrant a higher duty of care or protection. See Weiner, supra,
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`at 179-182.
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`22. Here, it is undisputed that Plaintiff was in the subject subway station for
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`the purpose of riding the subway; there was nothing unusual about his presence in or
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`intended use of the subway system. See Ex. D, Statutory Hearing, at 27:11-13, 28:6-22.
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`23.
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`Thus, Plaintiff had no “special relationship” that would establish a greater
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`duty owed to him than other passengers. See Weiner, supra, at 179-182.
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`24. Plaintiff alleges that while he “was a lawful passenger on defendants’
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`premises, he was assaulted by another passenger which caused [Plaintiff] to sustain
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`severe injuries.” Ex. C, Notice of Claim, at ¶ 5; accord Ex. A, Complaint, at ¶ 8.
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`25. Plaintiff testified that only the unknown individual who attacked him—and
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`not anyone or anything else—injured him on the date of the incident. See Ex. D,
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`Statutory Hearing, at 42:14-17.
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`26. Plaintiff further testified that neither the station agent present at the time of
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`the accident nor any of Defendants’ other employees did anything to injure him on the
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`date of the incident. See Ex. D, Statutory Hearing, at 42:18-25.
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`27. Because it is undisputed that Plaintiff was in the Grant Avenue station as
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`an ordinary passenger and that he was attacked by a third party who did not work for
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`Defendants, Defendants have established as a matter of law that they owed Plaintiff no
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`duty to prevent the third-party attack in which he alleges he was injured. See Weiner v.
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`Metropolitan Transp. Auth., 55 NY2d at 178-179.
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`FILED: KINGS COUNTY CLERK 04/12/2024 12:57 PM
`NYSCEF DOC. NO. 10
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`INDEX NO. 500277/2024
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`RECEIVED NYSCEF: 04/12/2024
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`28.
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`This negates an essential element of Plaintiff’s negligence claims,
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`warranting dismissal. See Poon v. Nisanov, 162 A.D.3d at 806.
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`29. Accordingly, the Court should grant Defendants’ motion for summary
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`judgment and dismiss Plaintiff’s negligence claims with prejudice.
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`B. Undisputed facts and admissible evidence establish that Defendants did not
`breach any duty owed to Plaintiff.
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`30. While Defendants have no duty to protect passengers from third-party
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`attacks, they do have a narrow duty to respond appropriately when an attack occurs.
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`31. Specifically, only “an NYCTA employee’s unreasonable failure to summon
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`aid upon observing an injury being inflicted from a vantage point offering both safety
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`and the means to summon help without danger may fall within the narrow range of
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`circ*mstances which could be found to be actionable.” Jacobs v. NY City Tr. Auth., 138
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`AD3d at 780.
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`32. Here, Plaintiff does not allege that any of Defendants’ employees
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`observed his assault and failed to respond. See generally Ex. A, Complaint.
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`33. On the contrary, it is undisputed that the station agent to whom Plaintiff
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`reported his assault did call for emergency assistance, prompting responses from police
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`and EMS. See Ex. D, Statutory Hearing, at 43:2-44:13, 47:25-48:14; see also generally
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`Ex. E, Certified Police Report.
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`34.
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`Therefore, Defendants have established as a matter of law that they did
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`not breach the narrow duty they owed to Plaintiff, an essential element of their
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`negligence claims. See Jacob, supra, at 780.
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`FILED: KINGS COUNTY CLERK 04/12/2024 12:57 PM
`NYSCEF DOC. NO. 10
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`INDEX NO. 500277/2024
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`RECEIVED NYSCEF: 04/12/2024
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`35. Accordingly, the Court should grant summary judgment to Defendants on
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`Plaintiff’s negligence claims and dismiss them with prejudice. See Poon v. Nisanov, 162
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`A.D.3d at 806.
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`POINT II
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`PLAINTIFF HAS FAILED TO STATE A CAUSE OF
`ACTION FOR BATTERY AGAINST THE DEFENDANTS.
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`36.
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`“A valid claim for battery exists where a person intentionally touches
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`another without that person's consent.” Wende C. v United Methodist Church, 4 NY3d
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`293, 298 [2005], cert. denied 546 U.S. 818 [2005] (citing PJI 2d 3:3 [2005]) (internal
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`citations omitted).
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`37. Here, Plaintiff asserts that “Defendants caused harmful bodily contact to
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`Plaintiff” which “constituted a battery in violation of the laws of the State of New York.”
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`See Ex. A, Complaint, at ¶¶ 31-32.
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`38. However, as discussed above, Plaintiff alleges that he was assaulted by a
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`passenger, not an employee or agent of Defendants. Ex. A, Complaint, at ¶ 8.
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`39. Plaintiff does not allege that anyone other than this unnamed passenger
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`touched him at all. See generally Ex. A, Complaint.
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`40. Because Plaintiff alleges no facts to support his legal conclusion that
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`Defendants battered him, the Court is not required to accept this conclusion as true.
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`See Meyer v Guinta, 262 AD2d at 464.
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`41.
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`Therefore, Plaintiff’s claim for battery should be dismissed with prejudice.
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`Dickinson v. Igoni, supra, at 945.
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`FILED: KINGS COUNTY CLERK 04/12/2024 12:57 PM
`NYSCEF DOC. NO. 10
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`INDEX NO. 500277/2024
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`RECEIVED NYSCEF: 04/12/2024
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`42.
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`In sum, because 1) Defendants are not vicariously liable for attacks
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`against passengers by fellow passengers, 2) Plaintiff does not allege that Defendants’
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`employees failed to seek aid for Plaintiff after his assault, and 3) Plaintiff does not allege
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`that any of Defendants’ employees touched Plaintiff, Plaintiff’s factual allegations
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`against Defendants fit no cognizable legal theory under which he could state a cause of
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`action. See Weiner v. Metropolitan Transp. Auth., 55 NY2d at 178-179; see also
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`Dickinson v. Igoni, 76 A.D.3d at 945.
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`43. WHEREFORE, Defendants respectfully request that the Court grant them
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`summary judgment on Plaintiff’s negligence claims, find that Plaintiff has failed to state
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`a cause of action for battery, and dismiss the Complaint in its entirety with prejudice,
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`along with such other and further relief as the Court may deem proper.
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`Dated:
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`New York, New York
`April 12, 2024
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`Jenna L. Krueger
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`________________________________________
`Jenna L. Krueger, Esq.
`GIORDANO GLAWS & FENSTERMACHER LLP
`Attorneys for Defendants
`New York City Transit Authority and Metropolitan
`Transit Authority
`61 Broadway, Suite 2235
`New York, New York 10006
`(212) 269-2353
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`TO: NASS ROPER & LEVIN, P.C.
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`Attention: Justin M. Roper, Esq.
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`Attorneys for Plaintiff
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`Kareem Cates
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`38 Railroad Avenue, Fl 2
`Valley Stream, NY 11580
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`FILED: KINGS COUNTY CLERK 04/12/2024 12:57 PM
`NYSCEF DOC. NO. 10
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`INDEX NO. 500277/2024
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`RECEIVED NYSCEF: 04/12/2024
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`22 NYCRR §202.8-b VERIFICATION
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`I, Jenna L. Krueger, the filing attorney for the above Affirmation In Support Of
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`Motion For Summary Judgment (the “Document”), having conducted a diligent review of
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`the number of words and length of the Document using the word-processing system
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`provided by Microsoft Word, and relying upon the results of that word processing
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`system, do hereby certify that the Document contains 2,056 words and is in compliance
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`with the applicable word-count limitations and guidelines set forth in 22 NYCRR §202.8-
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`b and/or as otherwise provided by the Court.
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`Dated:
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`New York, New York
`April 12, 2024
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`Jenna L. Krueger
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`________________________________________
` Jenna L. Krueger
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