Supreme Court, New York County, January 29, 2019

Melcer Newman, PLLC (Katina Despas-Barous of counsel) for defendants.

Rehan Nazrali for plaintiff.

In this personal injury action, defendants Showtime Networks, Inc., New York City Transit Authority (NYCTA), CBS Outdoor Americas, Inc., and the Metropolitan Transportation Authority (MTA) (collectively, the defendants) move pursuant{**63 Misc 3d at 258} to CPLR 3211 (a) (7), to dismiss the complaint for failure to state a cause of action.^[FN1]

This is an action by plaintiff Ajanaffy Njewadda to recover damages for personal injuries arising out of an accident that occurred on June 20, 2013. In the verified complaint plaintiff alleges that after going through turnstiles located in the New York City Grand Central subway station, at the "S shuttle," she was descending stairs and became concerned about the whereabouts of her husband (complaint ¶ 27). Plaintiff further alleges

"[t]hat she turned around and attempted to ascend the staircase to ascertain his whereabouts, when she saw and was confronted with, under the steps thereto, a semi sub-merged but dramatically oversized photograph, poster and or wrap-around advertisement of the actor Michael C. Hall, who portrays himself as DEXTER, a Showtime series about a serial killer[;]

"[t]hat the photograph, extending the full length of the steps from the top of the platform to the bottom, depicted a shocking, and menacing face of a Caucasian man (DEXTER) exhibiting an expression of fear or shock and was covered, draped or enwrapped in cellophane/plastic wrap [(the Dexter advertisement)][;]

"[t]hat the sight of [the] photograph startled, shocked and overwhelmed [p]laintiff causing her to panic and become fearful, which fright, fear and anxiety caused her to panic and lose her balance on the steps resulting in her falling down the steps to the bottom thereof" (complaint ¶¶ 28-30).

Plaintiff maintains that as a result of her fall, she suffered injuries to her right foot and ankle.

The Complaint

Plaintiff alleges causes of action against Showtime for intentionally and negligently "creating or producing and thereafter {**63 Misc 3d at 259}placing a tripping and or falling hazard in and or on or about a common public walkway thereby creating and or causing a dangerous condition for pedestrians" (first and second causes of action), and negligence as against defendants NYCTA, CBS, and the MTA (third, fourth and fifth causes of action).

Showtime

The complaint alleges Showtime creates, designs and authorizes the placement of its advertisements, including the Dexter advertisement, under the subject subway stairs. Showtime allegedly hired CBS to promote its program, "Dexter," through a series of ads, one of which allegedly panicked plaintiff. Plaintiff alleges that Showtime's decision to promote the program in such a provocative and shocking manner made Showtime liable for plaintiff's resultant injuries. As such, plaintiff alleges that Showtime intentionally and negligently created a dangerous tripping and falling hazardous condition by placing the subject "disturbing, provocative, shocking and fear inducing advertisement of Dexter at or under or on the subject subway stairs," which was a proximate cause of plaintiff's accident resulting in her injuries (complaint ¶¶ 36-38).

NYCTA and the MTA

According to plaintiff, both MTA and NYCTA were responsible for operating and managing the subject premises. Plaintiff contends that NYCTA breached its duty to maintain the stairway in a safe and hazard-free condition by permitting Showtime to place the dangerous and hazardous Dexter advertisement under the subject subway stairs,^[FN2] that NYCTA and the MTA had actual and constructive notice of said condition and that said breach was a proximate cause of plaintiff's accident (complaint ¶¶ 54-60, 80-85).

CBS

Plaintiff argues that CBS contracted with the other defendants to place the Dexter advertisement, and thereby had a duty to ensure that such advertisement was hazard-free. Plaintiff alleges that CBS was negligent in the placement of the Dexter advertisement, that CBS had actual or constructive notice of said condition and that the negligent placement of the Dexter advertisement was a proximate cause of plaintiff's accident (complaint ¶¶ 66-73).{**63 Misc 3d at 260}

Plaintiff's Deposition

At her deposition,^[FN3] plaintiff testified that she was in Grand Central Station with her husband when she swiped her MetroCard and descended down the subject stairs. Realizing that her husband was not with her, she turned around on approximately the third stair from the bottom and proceeded to ascend the stairs to find her husband. Plaintiff testified:

"Q. After you turned around, what happened exactly?

"A. So when I turned around and started moving up I saw the picture and got scared. It didn't even look like a picture. I thought it was a person.

"Q. After you got scared, what happened?

"A. I screamed[.]

"Q. After you screamed, what happened?

"A. I fell. What should I do? When I screamed I fell.

"Q. Was there anything on the stairway itself that caused you to fall; a newspaper, a wet substance, something else?

"A. It was clean. There was nothing on the steps.^[FN4] "Q. Ma'am, are you claiming that your fall was caused by the scary picture?

"A. Yes" (deposition tr at 49-50).

"Q. What portion of the face [depicted in the photograph under the stairs] did you see immediately before your fall?

"A. The eyes.

"Q. What is [it] about the photograph that scared you[?]

"A. The photograph itself scared me.

"Q. Something about the photograph, its characteristics that scared you?

"A. The eyes.

"Q. What characteristics from those eyes scared you and caused your fall?

"A. Something scary. It is just scary" (deposition tr {**63 Misc 3d at 261}at 51-52).

"Q. After you saw it, you testified that you fell; do you recall what portion of your body impacted the ground first?

"A. I cannot recall which part of my body fell first. All I remember is that I fell. My feet started hurting" (deposition tr at 52).

"Q. Ma'am, aside from the scary eyes, did you see any portion of the face before you fell?

"A. Yes, the face. When I saw the eyes and got scared, I had my eyes wide open. And I saw the face. That was before I fell" (deposition tr at 53).

"Q. My question is, ma'am: As you sit here today, do you claim that the sole reason for your fall was the scary eyes and face?^[FN5]

"A. Yes" (deposition tr at 54).^[FN6]

Defendants' Arguments

Defendants move pursuant to CPLR 3211 (a) (7) on grounds that plaintiff has failed to state a cause of action. Defendants argue that plaintiff's reaction to an advertisement is an unforeseeable act which does not impose liability on any of the defendants herein given that an action based on fear induced by an advertisement is not cognizable in New York. Defendants maintain that plaintiff herself admitted that the subject stairway was free of defects and that her fall was not caused by inadequate maintenance of the stairway. Defendants argue they had no duty to protect plaintiff from the Dexter advertisement and that plaintiff was responsible for her own fall. In addition, defendants contend they had no notice of a hazardous condition upon the stairway, and that defendants did not cause or create a defective or dangerous condition.

Moreover, defendants maintain that the MTA is not liable on the basis that the function of the MTA does not include the operation, maintenance, and control of a facility, and Showtime and CBS owed no duty to plaintiff to maintain the subject stairway. Defendants argue that Showtime cannot be held negligent for creating, designing, preparing or authorizing its{**63 Misc 3d at 262} advertisements or contracting with any of the defendants. Likewise, even assuming that CBS contracted with Showtime in order to advertise a television show, CBS is not liable for plaintiff's fall.

Plaintiff's Opposition

Plaintiff alleges that "defendants induced her fall and that it was the [d]efendants' negligent actions, to wit the placement of the subject distracting and disturbing advertising under the subject stairs that created a trap and or falling hazard" (plaintiff's affirmation in opp ¶ 10). Plaintiff avers that the Dexter advertisement was a shockvertisement, and that the defendants deliberately and intentionally caused a "material alteration and transformation [that] introduced, for a foreseeable class of persons traversing [the subject stairs], an ocular trap and viewing hazard sufficient to induce a shock-related fall" (plaintiff's affirmation in opp ¶ 20). Plaintiff concedes that there is no duty to protect or warn against an open and obvious condition, but that here, it is foreseeable that a person traversing the stairs with an ocular distraction, who then turns and swivels, would become shocked or frightened by a shockvertisement, causing a fall (plaintiff's affirmation in opp ¶ 96).

Plaintiff further supports her negligence cause of action by alleging that

"it was the combined concatenation of interrelated elements of the defendants' deliberate actions, which standing alone, might not individually give rise to liability, but put together in the logical chain of events as they were, exposed [p]laintiff to a startling event in a sensitive and precarious location, a subway stairs, a well known and established situs for hazardous pedestrian and or user falls of various types, and thus defendants in their various interrelated capacities had a duty to avoid and or prevent such hazardous fall in fact and in law and by failing to do so were negligent" (plaintiff's affirmation in opp ¶ 22).

Plaintiff makes reference to the Dexter advertisement as "a large, deliberately oversize wraparound and dramatically distorted poster of a man under the stairs visible only to pedestrians walking up the stairs," "a dangerously distracting foreign object [in] the ocular field or flow of human traffic upon said precarious staircase," "a deliberate induction of a kinetic psycho-cognitive impulse generator of fear in the viewer," "an {**63 Misc 3d at 263}ocular trap" and "a malignant optical distraction buried in the stairs that functionally operated, in certain foreseeable circumstances, as an ocular shock trap or hazard to unwary pedestrians" (plaintiff's affirmation in opp ¶¶ 49, 53, 55, 77).

Plaintiff argues that (i) she has a valid cause of action for negligently causing fright where such fright resulted in physical injury; (ii) defendants by their placement of the Dexter advertisement created a trap or hazard, and thereby an unreasonably dangerous or defective condition; (iii) plaintiff has sufficiently pleaded the specific duty each defendant owed to plaintiff as a result of their negligence; (iv) the MTA has a duty to plaintiff with regard to the placement of the Dexter advertisement arising out of certain advertising standards adopted by the MTA Board; and (v) Showtime and CBS had a special use of the subway public space arising out of their contracts with NYCTA and the MTA by creating the Dexter advertisement and placing it on a busy public subway staircase much like a "billboard placed on an arterial highway."

Motion to Dismiss

In deciding a motion brought pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the complaint should be liberally construed and the facts alleged in the complaint and any submissions in opposition to the dismissal motion accepted as true, according plaintiff the benefit of every possible favorable inference (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; see CPLR 3211 [a] [7]). "We . . . determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). A motion to dismiss must be denied "if from the pleadings' four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d at 152 [citations and internal quotation marks omitted]). On the other hand, while factual allegations contained in a complaint should be accorded a favorable inference, where "the allegations consist of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence, they are not entitled to such consideration" (Beattie v {**63 Misc 3d at 264}Brown & Wood, 243 AD2d 395, 395 [1st Dept 1997] [citations and internal quotation marks omitted]).^[FN7]

Negligence

In order to prevail in an action premised upon negligence, plaintiff must show that defendants owed her a duty, that defendants breached such duty, that such breach was the proximate cause of plaintiff's injuries, and that plaintiff suffered damages (Salvador v New York Botanical Garden, 71 AD3d 422, 423 [1st Dept 2010]).

Generally,

"[i]n order to make out a prima facie case of negligence in cases involving defective or dangerous conditions present on property, a plaintiff must demonstrate either that the defendant created the alleged hazardous condition or that the defendant had actual or constructive notice of the defective condition and failed to correct it. To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Mitchell v City of New York, 29 AD3d 372, 374 [1st Dept 2006] [internal quotation marks and citation omitted]; see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).

Showtime and CBS

[1] As a threshold matter, there is no evidence that defendants Showtime or CBS owed a duty of care to plaintiff in the first place. It is uncontroverted that neither defendant owns, manages, maintains, operates or supervises the subject subway stairwell. "Liability for a dangerous condition on property may only be predicated upon occupancy, ownership, control or special use of [the] premises" (Gibbs v Port Auth. of N.Y., 17 AD3d 252, 254 [1st Dept 2005]). In the instant matter, there is no proof whatsoever that Showtime or CBS owned, managed, operated or supervised the subject stairway or made a special use thereof.^[FN8]

{**63 Misc 3d at 265}Moreover, there is no evidence that Showtime or CBS caused, created or had notice of a dangerous condition given that plaintiff admitted in her deposition testimony that the subject stairway was clean and defect-free and it was only her reaction to the "scary" Dexter advertisement which caused her to fall. As such, the record is devoid of any evidence that defendants created or had notice of a dangerous condition. Plaintiff's argument that it was the placement of the photo by Showtime or CBS which proximately caused plaintiff's fall is likewise belied by plaintiff's deposition testimony that her fall was caused by her reaction to the Dexter advertisement not by its placement under the stairs.

Even if there existed a contract between Showtime or CBS and the MTA or NYCTA, "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" (Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002] [citation omitted]).^[FN9]

MTA

[2] Likewise, the MTA has no liability for the happening of the subject accident. " 'It is well settled, as a matter of law, that the functions of the MTA with respect to public transportation{**63 Misc 3d at 266} are limited to financing and planning, and do not include the operation, maintenance, and control of any facility' " (Delacruz v Metropolitan Transp. Auth., 45 AD3d 482, 483 [1st Dept 2007], quoting Cusick v Lutheran Med. Ctr., 105 AD2d 681, 681 [2d Dept 1984]). Plaintiff's reliance on 1997 MTA Advertising Standards as a basis to impose liability on the MTA is unavailing. As admitted by plaintiff, said standards prohibit the display of advertisements that violate Civil Rights Law § 50, which concerns the right to privacy, inapplicable to the case herein. Furthermore, plaintiff's argument that further discovery is needed with respect to the MTA advertising standards is without merit. The limitations on advertising referred to by plaintiff apply to MTA buses (see generally New York Mag. v Metropolitan Transp. Auth., 136 F3d 123 [2d Cir 1998]).

NYCTA

[3] Plaintiff has likewise failed to state a cognizable action for negligence against the NYCTA. As discussed above, it is uncontroverted that there was no defect or dangerous condition on the stairs but rather plaintiff's fall was caused by her reaction to the Dexter advertisement under the stairs. In opposition, plaintiff argues that the Dexter advertisement constituted "an ocular trap or hazard," "an ocular startle/shock trap and or hazard," "a malignant optical distraction," "an ocular distraction" or "an optical shock trap" to unwary pedestrians (plaintiff's affirmation in opp ¶¶ 55, 67-68, 77, 96). Plaintiff argues that such ocular trap caused her to become frightened and startled resulting in her fall and injuries.^[FN10] Plaintiff's counsel admitted during oral argument however that plaintiff's{**63 Misc 3d at 267} complaint fails to even allege that the Dexter advertisement constituted an ocular device which distorted her vision (tr at 14, lines 16-18).^[FN11] Plaintiff's counsel fails to cite any case supporting plaintiff's position that a picture or advertisement placed passively under the stairs or in any other location would give rise to a claim for negligence without pleading any affirmative negligent act by defendants.

The cases cited by plaintiff in support of her argument that there is a valid cause of action for negligently caused fright where such fright resulted in physical injury are inapposite. In all these cases there were affirmative acts of negligence or at the very least some physical act by a defendant (see e.g. Battalla v State of New York, 10 NY2d 237 [1961] [employee of defendant failed to properly secure a chair lift and as a result infant plaintiff became frightened and hysterical with consequential injuries]; Ansteth v Buffalo Ry. Co., 145 NY 210, 213, 214 [1895] [boy who was "stealing a ride" upon a train became frightened when a conductor came toward him with an outstretched hand which resulted in the boy falling on the tracks below; the act of the conductor "was of such a nature as to justify the plaintiff in believing that he was about to receive punishment or bodily injury"]; Mundy v Levy Bros. Realty Co., 184 App Div 467, 470 [2d Dept 1918] [door fell to the bottom of a shaft causing a shock to plaintiff from the vibration of the falling elevator causing plaintiff to lose her balance resulting in a fall; "(t)he claim of the plaintiff is not to recover for damages for fright or physical ailments due to fright, but for the physical injuries to her person which were the natural immediate result of defendant's negligence"]; Cohn v Ansonia Realty Co., 162 App Div 791 [1st Dept 1914] [mother who observed her children ascend in an unattended elevator became so frightened that she fainted and fell in an elevator shaft negligently left open by the elevator operator]; Jones v Brooklyn Hgts. R.R. Co., 23 App Div 141 [2d Dept 1897] [due to defendant's negligence, a globe of a lamp on the roof of defendant's car struck plaintiff on her temple producing shock resulting in a miscarriage]).^[FN12] In addition, plaintiff cites no authority for {**63 Misc 3d at 268}her argument that New York State regulations limiting the placement of advertising signs and billboards as to not impede the flow of traffic or arterial highways apply to the subject stairs.

Plaintiff argues at length that defendants' placement of the subject Dexter advertisement under the subject stairs "induced a violent, disturbing and shocking reaction to commuters and pedestrians thereto as they traversed up and down the stairs" in Grand Central Station (plaintiff's affirmation in opp ¶ 92). However, plaintiff has failed to plead a cause of action for intentional or negligent emotional distress and relies solely on causes of action for negligence. A cause of action arising solely out of the placement of an advertisement is not a cognizable cause of action in New York. In fact during oral argument, this court asked plaintiff's attorney if there ever has been a case such as this brought before. Plaintiff's counsel responded, "No" (tr oral argument at 15).^[FN13]

Plaintiff's argument that further discovery is needed is unavailing in this context. There is no discovery that could change the insufficiency of plaintiff's pleading to establish a viable cause of action under New York law.

Based on the foregoing, it is ordered that the motion by defendants Showtime Networks, Inc., New York City Transit Authority, CBS Outdoor Americas, Inc., and the Metropolitan Transportation Authority to dismiss the complaint is granted and the complaint is dismissed in its entirety against all defendants.

"three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Espinal v Melville Snow Contrs., 98 NY2d at 140 [internal quotation marks and citations omitted]; see Church v Callanan Indus., 99 NY2d 104, 110-111 [2002]; Fernandez v Otis El. Co., 4 AD3d 69, 72-73 [1st Dept 2004]).

"The existence and scope of a duty of care is a question of law for the courts" (Church v Callanan Indus., 99 NY2d at 110-111; see Espinal v Melville Snow Contrs., 98 NY2d at 141). Here, although plaintiff raises the issue of the duty owed, the parties fail to raise the applicability of Espinal or any of the Espinal exceptions.

" 'Optical confusion' occurs when conditions in an area create the illusion of a flat surface, visually obscuring any steps. '[F]indings of liability have typically turned on factors such as inadequate warning of the drop, coupled with poor lighting, inadequate demarcation between raised and lowered areas, or some other distraction or similar dangerous condition' " (Saretsky v 85 Kenmare Realty Corp., 85 AD3d 89, 92 n [1st Dept 2011] [citations omitted]).