The opinion of the court was delivered by: Sweet, District Judge.
Defendant SZS Associates, L.P. ("SZS") has moved pursuant to
Rule 56, Fed.R. Civ.P., for summary judgment of the personal
injury action brought by plaintiff Eleanor Monaghan as guardian
ad litem for her husband William Monaghan ("Monaghan" or
collectively, the "Monaghans"). Additionally, SZS has also
moved pursuant to Rule 26, Fed.R.Civ.P., for a protective order
relating to certain discovery requests. For the reasons set
forth below, SZS's summary judgment motion is granted, and
therefore SZS's Rule 26 motion is no longer properly before
The Monaghans are New Jersey residents. SZS, a Delaware
limited partnership, owns property in the state of New York.
The Monaghans filed their complaint in this personal injury
action against SZS in August of 1989.
Previously, a similar action by the Monaghans against the
Port Authority of the States of New York and New Jersey (the
"Port Authority") in New York State Supreme Court arising out
of the same set of facts was dismissed for failure to state a
cause of action pursuant to CPLR § 3211.
On March 23, 1987, at 7:30 p.m., Monaghan, a 62 year old
employee of New York Telephone, entered through certain doors
located near the corner of Sixth Avenue and 32nd street, New
York, N.Y., (the "Premises"). On his way to the station
operated by the Port Authority Trans Hudson Corporation
("PATH") from which he planned to catch a train home to New
Jersey, Monaghan entered through the doors into a vestibule or
lobby area (the "Vestibule").
In order to reach the PATH station from the entrance of the
corner of Sixth Avenue and 32nd street, the public, upon
entering the doors leading from the street, had to walk into
the Vestibule and then proceed down a stairway ("Stairway 307,"
originally "Stairway No. 1") to the PATH concourse. Stairway
307 consists of 21 steps leading to a landing. A second set of
stairs, Stairway 308, leads from that landing to the PATH
On March 23, 1987, after entering the Premises through the
doors and proceeding through the Vestibule to Stairway 307,
three armed assailants accosted Monaghan, and, in attempting to
rob him, shot him in the head. Monaghan fell at approximately
the eleventh step of Stairway 307. As a result of this
incident, Monaghan suffered profound brain damage.
The 1935 Deed and Agreement
On the day of the assault, SZS was the owner of the Premises,
having taken title to the property on December 22, 1986. The
building situated on the Premises was the former Gimbel's
building, an 11 story commercial structure that had occupied
the site since 1909. Gimbel's was out of business at the time
of the assault, and no business was being conducted within the
SZS purchased the property from Gimbel's subject to certain
existing encumbrances and restrictions. Among the encumbrances
was a set of easement agreements arising out of the
construction of the IND subway line beneath the building by New
York City (the "City"). The easements, set forth in a 1935 Deed
and Agreement (the "Deed" and the "Agreement", respectively),
govern the rights of the several entities with interests in the
Premises, its subjacent areas, or the surrounding properties:
Gimbel Brothers, Inc. ("Gimbel's") (predecessor of SZS);
Broadway and 33rd Street Realty Corporation (the "Realty
Corporation") (successor to the Greely Square Realty Company,
and lessor of the Premises to Gimbel's); the City of New York
(predecessor of the Metropolitan Transit Authority ("MTA"));
the Hudson and Manhattan Railroad Company (the "Railroad")
(predecessor of the PATH); New York Hotel Statler Co., Inc.;
and the Pennsylvania Tunnel and Terminal Co.
Stairway 307 (referred as Stairway No. 1) is the subject of
one of the easements contained in the Agreement. Pursuant to a
lease of April 23, 1909, Greely Square Realty Company leased
the Premises to Gimbel Brothers, New York, predecessor of
Gimbel's, reserving, however, to itself the right to grant to
the Railroad for certain purposes an easement to the exclusive
use and occupancy of any building to be constructed on the
Premises. This easement was known as the Railroad approach,
Stairway 1 (later Stairway 307).
In 1935, pursuant to the Deed, the Realty Corporation,
Gimbel's and the Railroad granted an easement to the City for
the use of Stairway 1 for "rapid transit railroad purposes."
The Deed also reserved to the Railroad, Gimbel's and the Realty
Corporation a joint permanent easement to Stairway No. 1
"jointly with others, for the purpose of ingress, egress ...