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[* 1] INDEX NO.

450301/2015
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/30/2019

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK: IAS PART 17
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AJANAFFY NJEWADDA,

Plaintiff,
Index No.: 450301/15
-against-
Motion Seq. No.: 002
SHOWTIME NETWORKS, INC., NEW YORK CITY
TRANSIT AUTHORITY, CBS OUTDOOR AMERICAS,
INC., THE METROPOLITAN TRANSIT AUTHORITY
and THE CITY OF NEW YORK,
DECISION/ORDER
Defendants.
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HON. SHLOMO S. HAGLER, J.S.C.:

In this personal injury action, defendants Showtime Networks, Inc. ("Showtime"), New

York City Transit Authority ("NYCTA"), CBS Outdoor Americas, Inc. ("CBS"), and The

Metropolitan Transit Authority ("MTA") (collectively, the "defendants") move pursuant to

CPLR 3211 (a) (7), to dismiss the complaint for failure to state a cause of action. 1

BACKGROUND FACTS

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 (the

"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 i! 27). Plaintiff further alleges

By Order, dated March 17, 2017 [Hon. Alexander M. Tisch, J.S.C.], the motion by The
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City of New York for summary judgment dismissing the plaintiffs complaint and any cross
claims against it was granted, without opposition. By Further Compliance Conference Order,
dated August 18, 2016 [Hon. Michael D. Stallman, J.S.C.], the claims of plaintiff spouse Sheik
Ahmad Tejan Wadda were withdrawn (Notice of Motion, Exhibit "L").

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"[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, iii! 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 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 plaintiffs resultant

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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 plaintiffs accident resulting in her injuries

(Complaint, iii! 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 NY CTA 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,2 that NYCTA and the MTA

had actual and constructive notice of said condition and that said breach was a proximate cause

of plaintiffs accident (Complaint iii! 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 plaintiffs accident (Complaint iii! 66-73).

2Plaintiff alleges
that the MTA was negligent in permitting and allowing NY CTA to place
Showtime' s advertisement in the subject location.

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Plaintiffs Deposition

At her deposition, 3 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. 4
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 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 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?

3Plaintiff also
appeared for her 50-h hearing on October 1, 2013 having filed a Notice of
Claim against the City, NYCTA and the MTA.
4 Plaintiff s
opposition claiming that the Dexter Advertisement is a "foreign object
appended to the stairs" is belied by plaintiffs deposition testimony that there was nothing on the
steps which caused her to fall (see Plaintiffs Affirmation in Opposition at ii 51 ).

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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 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? 5
A. Yes" (Deposition tr at 54). 6

Defendants' Arguments

Defendants move pursuant to CPLR 321 l(a)(7) on grounds that plaintiff has failed to

state a cause of action. Defendants argue that plaintiffs 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

5 Counsel for defendants, clarified that she [defendants' counsel] "need[s] to know if
[plaintiff] is claiming that her fall was as a result of being startled from the eyes and face"
(Deposition at 54). Plaintiffs counsel, who objected to the form of defendants' counsels'
question, stated the "fact that she [plaintiff] was on the steps, is "also a part of it".

6 Plaintiff s deposition objections in the transcript are omitted.

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Showtime cannot be held negligent for creating, designing, preparing or authorizing its

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 plaintiffs

fall.

Plaintiffs owosition

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" (Plaintiffs Affirmation in Opposition,

ii 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" (Plaintiffs Affirmation in Opposition, ii

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 (Plaintiffs Affirmation in Opposition, ii 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" (Plaintiffs Affirmation in
Opposition, ii 22).

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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 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" (Plaintiffs Affirmation in Opposition, iii!

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 pled 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 MT A

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".

DISCUSSION

Motion to Dismiss

In deciding a motion brought pursuant to CPLR § 321 l(a)(?) 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

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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 comers 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 [internal citations and 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 Brown & Wood, 243 AD2d 395, 395 [1st Dept

1997] [internal citation and quotation marks omitted]). 7

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 plaintiffs injuries, and that plaintiff suffered damages (Salvador v New York

Botanical Garden, 71AD3d422, 423 [Pt Dept 2010]).

Generally, "in order to make out a prima facie case of negligence 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

7The Court need not reach defendants' alternative argument that the within action should
be dismissed pursuant to CPLR 321 l(a)(l).

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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 [!51 Dept 2006] [internal quotation marks and citations omitted]; see Gordon v

American Museum of Natural History, 67 NY2d 836, 837 [1986]).

Showtime and CBS

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 may only be predicated upon occupancy, ownership, control or special use of [the]

premises" (Gibbs v Port Auth. ofNY, 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. 8

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. Plaintiffs argument that it was the

8 Plaintiffs conclusory argument that Showtime and CBS breached their duty to plaintiff
through their "special use" of the subject stairs, is unavailing. The doctrine of "special use"
imposes liability, in certain instances, where "permission [has been] given, by a municipal
authority, to interfere with a street solely for private use and convenience in no way connected
with the public use" (Kaufman v Silver, 90 NY2d 204, 207 [1997] [internal quotation marks and
citation omitted]). "Inherent in the doctrine of special use is the principle that the duty to repair
and maintain the special structure, or instrumentality is imposed upon the adjoining landowner or
occupier because the appurtenance was installed at their behest or for their benefit" (Id.). As
such, the doctrine of special use has no applicability to the instant matter.

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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] [internal citation

omitted]). 9

MTA

Likewise, the MTA has no liability for the happening of the subject accident. "'It is well

settled, as a matter oflaw, that the functions of the MTA with respect to public transportation 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

9
However, there are "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, launches 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.

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Rights Law,§ 50, which concerns the right to privacy, inapplicable to the case herein.

Furthermore, plaintiffs 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 Magazine v MTA, 136 F3d 123 [1997]).

NYCTA

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 plaintiffs 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.

(Plaintiffs Affirmation in Opposition, iii! 55, 67-68, 77, 96). Plaintiff argues that such ocular

trap caused her to become frightened and startled resulting in her fall and injuries. 10 Plaintiffs

counsel admitted during oral argument however that plaintiffs Complaint fails to even allege

that the Dexter Advertisement constituted an ocular device which distorted her vision (Tr at 14 1.

10Plaintiff has failed to demonstrate that the doctrine of "optical confusion" applies to the
subject matter. Optical confusion has been held to apply to a condition which creates "the
illusion of a flat surface, visually obscuring [a] step" (Langer v 116 Lexington Ave., Inc., 92
AD3d 597, 599 pst Dept 2012]; cfBuonchristiano v Fordham Univ., 146 AD3d 711, 712 [l5t
Dept 2017] [triable issue raised as to "whether the condition was open and obvious by
demonstrating through an expert's affidavit and photographs that the color and position of the
step created optical confusion, i.e., 'the illusion of a flat surface, visually obscuring ... [the] step
[]'"quoting Saretsky v 85 Kenmare Realty Corp., 85 AD3d at 92 fut*]). "'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 [fut*] [1st Dept 2011]).

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16-18). 11 Plaintiffs counsel fails to cite any case supporting plaintiff 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 negligence 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 ofNew 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 [ 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 AD 467, 4 70 [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 AD 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 AD 141 [2d Dept 1897]

During oral argument, plaintiff argues that the photo of Dexter also acted as a
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"construct". The Court stated that the Dexter Advertisement is not an "ocular device" or a
"construct" but a picture (Tr oral argument at 13-14).

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[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]. 12 In addition, plaintiff cites no

authority for 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 (Plaintiffs Affirmation in Opposition at iJ 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

plaintiffs attorney ifthere ever has been a case such as this brought before. Plaintiffs counsel

responded "No" (Tr oral argument at 15). 13

Plaintiffs argument that further discovery is needed is unavailing in this context. There

is no discovery that could change the insufficiency of plaintiffs pleading to establish a viable

cause of action under New York law.

Plaintiff also cites Beck v Libraro, 220 AD 54 7 [2d Dept 1927] which is completely
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inapposite to the instant matter. There defendant fired a gun into plaintiffs apartment breaking a
window causing extreme fright to plaintiff resulting in illness. The court held that defendant's
actions were reckless and constituted a willful tort.

This Court also posed the question "[h]as there ever been a case where there's been a
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picture, either on a step or in a subway or anywhere else, that gave rise to [n]egligence without
there being any affirmative act of negligence, other than putting [a picture] passively on the wall
or on [steps]?"

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CONCLUSION

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 Transit Authority to

dismiss the Complaint is granted and the Complaint is dismissed in its entirety against all

defendants, with costs and disbursements as taxed by the Clerk of the Court; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

J.S.C.

SHLOMO HAGLER
J.S.C.

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