UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
December 17, 1993
Karen J. Stickle
City-Wide Security Services, Inc. and Mitsubishi Bank
The opinion of the court was delivered by: LOUIS L. STANTON
Mitsubishi Bank (the "Bank") and City-Wide Security Services ("City-Wide") move pursuant to 28 U.S.C. § 1292(b) for an order certifying for appeal this court's Opinion and Order dated November 4, 1993, Stickle v. City-Wide Security Services, Inc., 839 F. Supp. 207, 1993 U.S. Dist. LEXIS 15556, 1993 WL 453846 (S.D.N.Y. 1993), which denied their motions for summary judgment.
1. Section 1292(b) provides that an interlocutory order of a district court may be certified for appeal if the court is "of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." The Court of Appeals for the Second Circuit repeatedly has cautioned "the district court to exercise great care in making § 1292(b) certification." Westwood Pharmaceuticals, Inc. v. National Fuel Gas Distribution Corp., 964 F.2d 85, 89 (2d Cir. 1992). See also Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990) (only "exceptional circumstances" justify an interlocutory appeal).
2. City-Wide argues that the question whether plaintiff was a third-party beneficiary should be certified for appeal because the court departed from prevailing New York law on that issue. According to City-Wide, if "this Court's decision is upheld, it would overrule the New York State Appellate Court's decision in Pagan." (City-Wide's Memorandum at 5). Not so. This court applied the same standard that was articulated in Pagan v. Hampton Houses, Inc., 187 A.D.2d 325, 589 N.Y.S.2d 471 (1st Dep't 1992), and that is applied generally in New York courts. Upon review of the agreement between City-Wide and the Port Authority, the court found that "there is a natural reading which clearly provides for guarding the building's tenants." Stickle, 839 F. Supp. 207, 1993 WL 453845 at *4. Disagreement over that conclusion does not justify certifying the question for an interlocutory appeal. Accordingly, City-Wide's motion for certification is denied.
3. The Bank also argues that in denying its motion for summary judgment, the court departed from prevailing New York law. According to the Bank, the duty to provide security at the World Trade Center rests exclusively with the Port Authority as landlord. The case law, however, does not restrict liability to landlords. See, e.g., Newell v. Swiss Reassurance Co., Inc., 181 A.D.2d 505, 506, 580 N.Y.S.2d 361, 362 (1st Dep't 1992) ("A person who possesses realty either as an owner or a tenant is under a duty to exercise reasonable care to maintain the premises in a safe condition, including taking reasonable precautions to protect members of the public from foreseeable criminal acts of third persons.").
Assuming facts in the light most favorable to plaintiff, the Bank exercised control over security arrangements for the eighty-fifth floor: it instructed Port Authority security to disengage the motion detection system and to restore elevator service to the vacant floor indefinitely, even though it was on notice that its actions would pose a threat to the safety of its neighbors. Plaintiff may maintain suit against the Bank for its alleged role in creating a foreseeable hazard on its premises.
In an event, an appeal would not materially advance the ultimate termination of the litigation. Even were the Bank successful on appeal, there would remain a trial on plaintiff's claims against City-Wide. An interlocutory appeal would simply delay the proceedings. See American Geophysical Union v. Texaco, Inc., 802 F. Supp. 1, 29 (S.D.N.Y. 1992) ("'The critical requirement is that [the issue] have the potential for substantially accelerating the disposition of the litigation.'"), quoting 9 Moore's Federal Practice P 110.22, at 260 (1988). Accordingly, the Bank's motion for certification is also denied.
Dated: New York, New York
December 17, 1993
LOUIS L. STANTON
U. S. D. J.
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