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MONAGHAN v. SZS 33 ASSOCS.

July 22, 1993

ELEANOR MONAGHAN, Individually and as Guardian Ad Litem for WILLIAM MONAGHAN, an incompetent, Plaintiffs,
v.
SZS 33 ASSOCIATES, L.P., a Delaware Limited Partnership, Defendant. SZS 33 ASSOCIATES, L.P., a Delaware Limited Partnership, Third-Party Plaintiff, v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, and PORT AUTHORITY TRANS-HUDSON CORP., Third-Party Defendants. SZS 33 ASSOCIATES, L.P., a Delaware Limited Partnership, Second-Third-Party Plaintiff, v. TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, McLANE SECURITY, INC., Second-Third Party Defendants.


SWEET


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D.J.

 This opinion addresses two sets of related motions. The first set (the "Set I Motions") consists of the following motions: the motion of defendant and second third-party defendant R.B. McLane Associates, Inc., ("McLane"), brought pursuant to Rule 56, Fed. R. Civ. P., for an order granting it summary judgment against the Plaintiff Eleanor Monaghan, individually and as a guardian ad litem for her husband William Monaghan ("Monaghan," collectively, the "Plaintiffs"); and the motion of defendant and second third-party defendant Tishman Construction Corp. of New York, Inc., (Tishman), brought pursuant to Rule 56, for an order granting it summary judgment against the Plaintiffs.

 The second set of motions (the "Set II Motions") includes the following: the motion of defendant and third-party plaintiff Silverstein 33 Associates, L.P. ("SZS"), brought pursuant to Rule 56, for an order granting summary judgment in its favor against the Plaintiffs, and in the alternative, SZS's motion, brought pursuant to Rule 42, Fed. R. Civ. P., for bifurcated trials on the issues of liability and damages and for an order excluding Monaghan from the courtroom during the trial; McLane's motion, brought pursuant to Rule 42, for bifurcated trials and for an order excluding Monaghan from the courtroom; and the cross-motion of third-party defendants. The Port Authority of New York and New Jersey (the "Port Authority") and the Port Authority Trans-Hudson Corp. ("PATH"), brought pursuant to Rule 56, for order granting them summary judgment against SZS's third-party complaint.

 Oral argument was heard on the Set I Motions on March 10, 1993, and this set of motions was considered submitted as of that date.

 Oral argument on the Set II Motions was originally scheduled for May 12, 1993. During the course of the argument the Plaintiffs indicated that a deposition of a relevant witness was scheduled for the following week. After the Court noted that the Plaintiffs counsel should be "hanged, drawn, and quartered" Tr. at 14, for wasting everyone's time as a result of its failure to notify the Court and the parties of this development and request an adjournment of the oral argument until the deposition was taken, oral argument was adjourned to June 23, 1993. Oral argument on the Set II motions was heard on June 23, 1993, and those motions were considered submitted as of that date.

 For the reasons set forth below, SZS's Rule 56 motion and the Rule 56 cross-motion of PATH and the Port Authority are denied. The Rule 56 motions of McLane and Tishman are granted. The Rule 42 motions of SZS and McLane are denied, and their motions to exclude Monaghan from the courtroom are granted.

 The Parties

 The Monaghans are natural persons who reside and are domiciled in the State of New Jersey.

 SZS, a Delaware limited partnership, owns property in the State of New York, specifically, the property located at 1275 Broadway in New York City, formerly known as the Gimbels' Building (the "Premises").

 The Port Authority and PATH are governmental entities duly organized and existing under and by virtue of the laws of the States of New York and New Jersey and operate a public railroad transportation system.

 The Facts and Prior Proceedings

 The facts and prior proceedings in this diversity action are fully set forth in the prior opinions of this Court, familiarity with which is assumed. See Monaghan v. SZS 33 Associates, L.P., 148 F.RD. 500, 1993 U.S. Dist. LEXIS 5939 (S.D.N.Y. 1993) ("Monaghan V"); Monaghan v. SZS 33 Associates, L.P., No. 89 Civ. 4900 (RWS), 1992 U.S. Dist. LEXIS 7864 (S.D.N.Y. June 1, 1992) ("Monaghan IV"); Monaghan v. SZS 33 Associates, L.P., No. 89 Civ. 4900 (RWS), 1991 U.S. Dist. LEXIS 10943 (S.D.N.Y. Aug. 8, 1991) ("Monaghan III"); Monaghan v. SZS 33 Associates, L.P., 760 F. Supp. 355 (S.D.N.Y.) ("Monaghan I"), aff'd, 953 F.2d 635 (2d Cir. 1991) (unpublished summ. order) (Nos. 91-7781, 91-7803, slip. op. (2d Cir. Dec. 5, 1991), referred to as "Monaghan II"). Only those facts relevant to the instant motions and cross-motion are presented below.

 On March 23, 1987, Monaghan was shot in the head and severely brain damaged, during an attempted robbery. The attack took place as he passed through a vestibule or lobby area (the "Vestibule") and descended a stairway ("Stairway 307," originally Stairway No. 1) located on the Premises. He was on his way to the train station operated by PATH and the Port Authority located beneath the Premises.

 At the time of the attack, the old Gimbels' Building on the Premises was closed, and SZS had contracted with Tishman to undertake an extensive renovation and construction project on the Premises.

 On July 14, 1989, the Plaintiffs brought a diversity action against SZS on a theory of premises liability for negligently and knowingly permitting a dangerous condition to exist upon its premises (the "SZS Action"). On December 28, 1990, the Plaintiffs brought a diversity action against McLane and Tishman on a theory of liability for negligently, recklessly, and carelessly securing the Premises and thereby proximately causing Monaghan's injury (the "McLane Action").

 After two rounds of discovery, SZS moved for summary judgment. In Monaghan I, based upon SZS's representations, this Court granted that motion on alternative grounds: first, SZS did not owe Monaghan a duty of care because it was the dominant estate owner only with regard to the Vestibule, not Stairway 307 on which Monaghan was attacked; *fn1" second, even if the attack took place in the Vestibule, the danger of criminal assault there was not foreseeable; and third, even if the attack took place on Stairway 307, SZS owed Monaghan no greater duty of care than if the attack occurred in the Vestibule.

 In its summary order affirming Monaghan I, the Second Circuit held that, because the Plaintiffs could identify only two reported crimes that had occurred in the vestibule areas prior to the attack on Monaghan, the Plaintiffs had failed to advance sufficient evidence to create an issue regarding the duty of care SZS allegedly owed Monaghan. See Monaghan II, slip op. at 3.

 As set forth in detail in Monaghan IV and Monaghan V, the Plaintiffs' subsequent motion to vacate the summary judgment and reinstate this action was granted after this Court found that SZS had deliberately failed to produce various relevant documents. In Monaghan V, this Court also granted the Plaintiffs relief pursuant to Rule 37, Fed. R. Civ. P., in the form of "precluding SZS from raising as a defense the issue that it was not on notice regarding the condition of the Premises or the criminal activities taking place thereon." 148 F.R.D. 500, 1993 U.S. Dist. LEXIS 5939, at *35.

 Following the reinstatement of this action, SZS was granted permission to implead PATH and the Port Authority as third-party defendants. SZS filed the third-party complaint naming them as third-party defendants on July 14, 1992. SZS also was granted permission to implead McLane and Tishman was second third-party defendants, and SZS filed that second third-party complaint on September 21, 1992.

 The SZS Action and the McLane Action were consolidated under the single caption set forth above by order of the Court on July 8, 1992.

 The Defendants, third-party Defendants, and second third-party Defendants now bring their respective motions for orders granting each summary judgment against either the Plaintiffs or SZS as the third-party plaintiff. Additionally, SZS and McLane move for separate trials on the issues of liability and damages and move to exclude Monaghan from the courtroom during the trial.

 Discussion

 I. The Motions For Summary Judgment

 A. Rule 56 Standards for Summary Judgment

 The Rule 56 motion for summary judgment is "an integral part" of the Federal Rules of Civil Procedure and facilitates the overall purpose of the Rules as stated in Rule 1, namely, "to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Silver v. City Univ. of New York, 947 F.2d 1021, 1022 (2d Cir. 1991).

 The Second Circuit has unambiguously defined the role of the district court in deciding Rule 56 motions:

 
The district court's role . . . requires the court not to resolve disputed issues of fact itself, but rather to see if there are issues of fact to be resolved by the factfinder at trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). That is to say, when examining the record before it to see if there are any genuine issues of material fact, the court's focus is on issue-finding, not on issue-resolution. In making its assessment, the trial court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. See United States v. Diebold, 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam).

 Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d. 568, , 1993 U.S. App. LEXIS 13777, at *9-*10 (2d Cir. 1993).

 The Second Circuit has repeatedly noted that "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex v. Catrett, 477 U.S. 317, 330, n.2, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (Brennan, J., dissenting) and Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)); see United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir. 1992); Burtnieks v. City of New York, 716 F.2d 982, 983-84 (2d Cir. 1983). If, when "viewing the evidence produced in the light most favorable to the nonmovant . . . a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991).

 When a motion for summary judgment is made and the nonmoving party will bear the burden of proof at trial, "Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim." Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991). However, if the moving party is still entitled to judgment as a matter of law after all the facts alleged by the nonmoving party are resolved in his favor as true, then any remaining factual disputes are neither "genuine" nor "material" and will not prevent the court from granting the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) ("a material fact is 'genuine' . . . if the evidence is such that a reasonably jury could return a verdict for the nonmoving party"). Thus, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 Finally, the court must look to the substantive law to determine which facts are "material," to wit, disputed facts that might affect the outcome of the suit under governing law. See Anderson, 477 U.S. at 248. It follows, then, that "entry of summary judgment indicates that no reasonable jury could return a verdict for the losing party." Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991).

 B. SZS's Motion For Summary Judgment Is Denied

 As is detailed in Monaghan I, 760 F. Supp. at 357, on March 23, 1987, at 7:30 p.m., Monaghan entered the Vestibule through certain doors located near the corner of Sixth Avenue and 32nd Street of the Premises. In order to reach the PATH station from this entrance, a person had to walk into the Vestibule and then proceed down a Stairway 307 to the PATH concourse. Stairway 307 consists of 21 steps leading to a landing (the "Landing"). A second set of stairs ("Stairway 308"), leads from the Landing to the PATH concourse level.

 According to SZS, on March 23, 1987, after entering the Premises through the doors and proceeding through the Vestibule to Stairway 307, three armed assailants attacked Monaghan, and, in attempting to rob him, shot him in the head. Monaghan fell at approximately the eleventh step of Stairway 307.

 SZS asserts that it is entitled to summary judgment in its favor on the theory that it owed no duty to Monaghan because the injuries suffered by Monaghan were not foreseeable and because Stairway 307 was under the exclusive control of the Port Authority as the dominant owner of certain easements created by agreements and deeds among the City of New York, the Hudson Manhattan Railroad, and Gimbel Brothers, Inc., in 1935 and 1940. The Port Authority acquired these easements in or about 1962 through a condemnation action.

 SZS offers a detailed analysis of the law regarding the rights and obligations of the owners of dominant and servient estates in an easement and of the easements affecting Stairway 307. From this analysis, SZS concludes that the Port Authority had the continuous obligation to maintain and secure the easement areas, including Stairway 307 by virtue of the easements and the Port Authority's actions:

 
In fact, during all relevant times, and from December 22, 1986 to March 23, 1987, it was the Port Authority that maintained the lighting in the stairway. They patrolled, secured and policed the stairway.

 SZS Br. in Supp. Summ. J. at 6. Thus, in SZS's view, from the time of the creation of the easements in 1935, through the supplement agreement of 1940, and on to March 23, 1987, first the Hudson Manhattan Railroad and then the Port Authority was obligated to provide security for ...


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