Author: John A. Anselmo
Editor: Grace Shuman
On July 3, 2019, Franics Quinn, Jr. (“Mr. Quinn”) was injured after tripping on a sidewalk in New York City at the intersection of West 53rd Street and Sixth Avenue. Mr. Quinn is a professional golfer who has played on the PGA Tour. He first commenced suit against Consolidated Edison (“Con Ed”) in the Southern District of New York on July 15, 2019.[i] In that action, plaintiff claimed his accident resulted from a defective and hazardous condition, namely, a Con Ed gas utility box within the crosswalk.[ii] His wife also asserted a derivative cause of action.
While Mr. Quinn’s action was pending against Con Ed, he served a Notice of Claim against the City of New York (and the New York City Department of Transportation). Mr. Quinn reiterated his claims of a defective utility box in the crosswalk and further alleged the city defendants failed to properly inspect and repair the alleged defective condition, thus creating a dangerous and hazardous “trap like” condition.[iii] Mr. Quinn’s wife also asserted a derivative claim against the city defendants, alleging a loss of companionship and consortium.[iv]
Prior to the commencement of the action against the city defendants, plaintiffs attended a settlement conference in the Con Ed action, at which time they agreed to a settlement in the amount of $2,499,000. The Con Ed action was dismissed on February 20, 2020.[v]
One month later, Mr. Quinn, along with his wife, commenced an action against the city of New York and the New York City Department of Transportation in the Southern District of New York. On November 18, 2020, the city commenced a third-party complaint against Con Ed for contribution and indemnification.[vi]
On May 10, 2021, 14 months after suit was commenced against them, the city moved to dismiss plaintiffs’ complaint on the grounds judicial estoppel applied. Specifically, the city argued there were inconsistencies between the two suits brought against Con Ed and the city with respect to how the accident occurred[vii]. On March 24, 2022, the city’s motion was granted, and the case was dismissed.[viii] However, plaintiffs appealed the decision to the Second Circuit, who reversed the decision and remanded the case back to the district court for further proceedings.
In an order dated July 5, 2023, the Second Circuit stated, “Courts may apply judicial estoppel only if ‘(1) a party’s later position is clearly inconsistent with its earlier position, and (2) the party’s former position has been adopted in some way by the court in an earlier proceeding.’ Ashmore v. CGI Grp., Inc., 923 F.3d 260, 272 (2d Cir. 2019). In most, but not all cases, we also require a showing that (3) ‘the party asserting the two inconsistent positions would derive an unfair advantage against the party seeking estoppel.’ Id.[ix]” The Second Circuit found judicial estoppel did not apply because the Magistrate Judge’s involvement in the settlement conference did not “constitute ‘judicial endorsement of either party’s claims or theories.’”[x]
Almost immediately after the case was remanded back to the district court, the city sought permission to file a motion for summary judgment pursuant to NYC Administrative Code § 7-201, which states, in relevant part, “[n]o civil action shall be maintained against the city for…. injury to person …. sustained in consequence of any street, highway, bridge, wharf, culvert, sidewalk or crosswalk, or any part or portion of any of the foregoing including any encumbrances thereon or attachments thereto…. unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition” was received.[xi] The district court granted leave to the city to file the motion for summary judgment as a matter of law.
On September 26, 2024, the district court granted the city’s motion for summary judgment and dismissed plaintiffs’ complaint. The city’s motion was based on documentary evidence, including affidavits, without the need for protracted discovery.[xii] In sum, the court ruled the city made a prima facie showing they did not have prior written notice of any defective condition prior to Mr. Quinn’s accident and that plaintiffs failed to establish a “genuine dispute of material fact.”[xiii]
Plaintiffs have appealed the decision.
Take Away
This matter highlights the need to be aggressive in the defense of every action, at every step along the way. By moving to dismiss, and later for summary judgment, the city did not afford time for plaintiffs to “muddy up” the record by engaging in discovery and twisting facts to suit their needs. Given the on-going trend of Nuclear Verdicts® in the state of New York, it is vital defense counsel fight all liability allegations as early as possible. Should defense counsel fail to fight liability, you run the risk of receiving an adverse finding of summary judgment, at which point 9% interest begins to run, emboldening plaintiffs to seek damages in excess of what a case is actually worth.
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