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March 28, 1991


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 this court.

The Parties

The Monaghans are New Jersey residents. SZS, a Delaware limited partnership, owns property in the state of New York.

Prior Proceedings

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.

SZS filed its summary judgment motion on November 1, 1989, and on November 27, 1990, its motion for a protective order. Oral argument was heard on December 7, 1990.

The Facts

The Assault

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 concourse level.

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 Gimbel's building.

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 ...

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