Monaghan v. SZS 33 ASSOCIATES, LP
| Decision Date | 22 July 1993 |
| Docket Number | No. 89 Civ. 4900 (RWS).,89 Civ. 4900 (RWS). |
| Citation | 827 F. Supp. 233 |
| Parties | 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. |
| Court | U.S. District Court — Southern District of New York |
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Levy Phillips & Konigsberg, New York City (Alan J. Konigsberg, of counsel), for plaintiffs.
Bower & Gardner, New York City (Warren Sanger, of counsel), for defendant SZS 33 Associates, Inc.
Lester Schwab Katz & Dwyer, New York City (Adam Hurwitz, of counsel), for defendant R.B. McLane Associates, Inc.
Gordon & Silber, New York City (Steven Sold, of counsel), for defendant Tishman Const. Corp.
Milton H. Pachter, New York City (Richard D. Williams, of counsel), for third-party defendant The Port Authority of New York and New Jersey and Port Authority Trans-Hudson Corp.
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 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").
McLane and Tishman are corporations duly organized and existing under the laws of the State of New York.
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 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.R.D. 500 (S.D.N.Y. 1993) ("Monaghan V"); Monaghan v. SZS 33 Associates, L.P., No. 89 Civ. 4900 (RWS), 1992 WL 135821, 1992 U.S.Dist. LEXIS 7364 (S.D.N.Y. June 1, 1992) ("Monaghan IV"); Monaghan v. SZS 33 Associates, L.P., No. 89 Civ. 4900 (RWS), 1991 WL 156377, 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 motion 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 attacked1; 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, 511.
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.
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, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (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....
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