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Zinz v. Empire City Subway Co.

United States District Court, S.D. New York

October 14, 2014

HERBERT ZINZ, Plaintiff,


LORNA G. SCHOFIELD, District Judge.

On March 30, 2013, Plaintiff Herbert Zinz tripped and fell at the intersection of Spring Street and Broadway in Manhattan, and sustained several injuries. Zinz initiated this lawsuit, based on diversity jurisdiction, asserting a single negligence claim against Defendants Empire City Subway Company (Limited) ("Empire"), the City of New York ("the City"), Consolidated Edison Company of New York, Inc. ("Con Edison"), and Optical Communications, Inc. ("Optical"). Optical has since been dismissed with prejudice by stipulation. The remaining Defendants each filed a motion for summary judgment on Zinz's negligence claim. Plaintiff filed opposition to these motions, and Defendant and Third Party Plaintiff Empire filed opposition to Con Edison and the City's motions.

For the reasons stated below, Empire's motion is denied. Con Edison's motion is denied. The City's motion is granted.


The basic facts of this case are undisputed. On March 30, 2013, at approximately 5:30 p.m., Zinz tripped and fell at the southeast corner of the intersection of Spring Street and Broadway in Manhattan. The notice of claim that Zinz sent to the City alleges that Zinz fell in a rectangular hole approximately 26 inches by 33 inches; the hole was located within the intersection itself, rather than the painted pedestrian crosswalk. New York City Department of Transportation records show that (1) Con Edison had performed roadway work and operated subterranean gas lines in the intersection and (2) Empire owned at least one manhole cover in the intersection.

I. Roadway Work at the Intersection

During discovery, the City produced numerous work orders concerning the intersection of Spring Street and Broadway. Two work orders in particular are worth noting.

On February 23, 2011, the City made temporary repairs to "a 3 × 2' portion of surrounding asphalt around [Empire] marked manhole cover, " which was "broken out 5" in [the southeast] c[orner] of [the] intersection." Department of Transportation records indicate that "[t]emporary repairs were made to make the area safe." The records, current as of April 24, 2014, mark the condition as "Closed - No Further Updates."

On January 9, 2013, the City made repairs to the same intersection. Testimony from employees of the City and of Empire suggest that these repairs may have been made improperly. In particular, the City may not have performed a procedure called "screening, " which ensures that the asphalt used to fill a pothole remains stable and does not disintegrate.

II. Photographs of the Intersection and Zinz's Identification of the Incident Location

On approximately April 9, 2013, an attorney from the law firm representing Plaintiff "personally observed, photographed, and measured the distance between the defective condition" that caused Zinz's injuries "and the [Empire] manhole cover in the intersection of Broadway and Spring Street." Plaintiff's counsel sent several post-incident photographs of the intersection to Defendants.

At his deposition on April 28, 2014, Zinz testified that his left foot "went into this pothole." Zinz was then presented with one of the post-incident photographs. At counsel's request, Zinz circled the hole in which he fell on one of the post-incident photographs. (Dkt. 61-5, at 34-35).


The standard for summary judgment is well established. Summary judgment is appropriate where the record before the court establishes that there is no "genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine dispute as to a material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must construe the evidence in the light most favorable to the nonmoving party and must draw all reasonable inferences in the nonmoving party's favor. See id. at 255.

A federal court sitting in diversity applies the choice of law rules of the forum state; thus, New York choice of law principles apply here. See In re Coudert Bros. LLP, 673 F.3d 180, 186 (2d Cir. 2012) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). "Under New York's interest analysis approach[, ] courts seek to effect the law of the jurisdiction having the greatest interest in resolving the particular issue, which in the typical case will be either the jurisdiction where the tort occurred or the domicile of one or more of the parties." Mashreqbank PSC v. Ahmed Hamad Al Gosaibi & Bros. Co., 12 N.E.3d 456, 462 (N.Y. 2014) ...

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