Crowin et al v. NYC Bike Share LLC et al

Filing 435

OPINION & ORDER re: 401 MOTION for Leave to Appeal filed by City of New York; 406 MOTION for Joinder filed by Sealcoat USA, Inc.; 402 MOTION for Reconsideration re; 389 Memorandum & Opinion, Add and T erminate Parties filed by NYC Bike Share LLC, Alta Bicycle Share, Inc.; 403 CROSS MOTION for Reconsideration re; 389 Memorandum & Opinion, Add and Terminate Parties Re: Summary Judgment filed by Beth Blumenthal, Ro nald D. Corwin; 400 MOTION for Reconsideration re; 389 Memorandum & Opinion, Add and Terminate Parties by Metro Express and Sealcoat MOTION to Amend/Correct answers of Metro Express and Sealcoat filed by MetroExpress Se rvices, Inc. The motions for reconsideration filed by plaintiffs Ronald D. Corwin and Beth Blumenthal, Metro Express Services, Inc., Sealcoat USA, Inc., NYC Bike Share, LLC, and Alta Bicycle Share, Inc./Motivate International are all DENIED. The motions to amend their answers filed by Metro Express Services, Inc. and Sealcoat USA, Inc. are DENIED. The City of New York's motion for leave to file an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) is DENIED. Insofar as the Co urt has denied Metro Express Services, Inc. and Sealcoat USA, Inc. motions for leave to amend and reconsideration, their motion for joinder to NYC Bike Share, LLC, and Alta Bicycle Share, Inc./Motivate Internationals motion for reconsideration is DENIED as moot. The Clerk of Court is respectfully requested to close Dkt. Nos. 400, 401, 402, 403, and 406. SO ORDERED. (Signed by Magistrate Judge Sarah Netburn on 4/7/2017) (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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4/7/2017

RONALD D. CORWIN, et al.,
Plaintiffs,

14-CV-1285 (SN)
OPINION & ORDER

-againstNYC BIKE SHARE, LLC, et al.,
Defendants.
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SARAH NETBURN, United States Magistrate Judge:

Familiarity with the factual background of this case is assumed. On March 1, 2017, the
Court issued an Opinion and Order on the parties’ cross-motions for summary judgment. Corwin
v. NYC Bike Share, LLC, No. 14-CV-1285 (SN), 2017 WL 816134 (S.D.N.Y. Mar. 1, 2017).
With the exception of defendants Alta Planning + Design Inc. and Alta Planning + Design +
Architecture of New York, PLLC, (collectively, “APD”) who were granted summary judgment
on plaintiffs’ claim, every remaining party has moved for some form of relief from this
decision.1
Defendants Metro Express Services, Inc. (“Metro Express”) and Sealcoat USA, Inc.
(“Sealcoat”) move for reconsideration under Federal of Rule of Civil Procedure 54(b) and Local
Civil Rule 6.3 and for leave to amend their answers to include affirmative defenses based on the
release in the CitiBike User Agreement (“Agreement”). ECF No. 400. In the Opinion and Order,
the Court held that the Agreement released plaintiffs’ claims against Motivate International (f/k/a

APD’s motion for summary judgment as to all cross-claims filed by defendants shall be addressed in a
separate Opinion and Order.
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Alta Bicycle Share, Inc.) and NYC Bike Share, LLC; however, because Metro Express and
Sealcoat never asserted the Agreement as an affirmative defense in their answers and did not
address the issue in their summary judgment briefing, the Court did not consider its applicability
to these parties.
Defendants Motivate International and NYC Bike Share, LLC (collectively, “NYCBS”)
move for reconsideration under Federal of Rule of Civil Procedure 54(b) and Local Civil Rule
6.3 of the March 1, 2017 Opinion and Order to the extent that it denied summary judgment to
NYCBS on plaintiffs’ claims of gross negligence. ECF No. 402. The Court found that summary
judgment was inappropriate because a reasonable factfinder could conclude that NYCBS’s
conduct was sufficiently reckless and/or aggravated to meet the gross negligence standard.
Corwin, 2017 WL 816134, at *28. Defendants Metro Express and Sealcoat filed a notice of
joinder in this motion for reconsideration. ECF No. 406.
Plaintiffs Ronald D. Corwin and Beth Blumenthal (collectively, “Corwin”) move for
reconsideration under Federal of Rule of Civil Procedure 54(b) and Local Civil Rule 6.3 of the
March 1, 2017 Opinion and Order on two primary bases: (1) that the enforcement of the CitiBike
User Agreement against Corwin is improper because a proper reading of the Agreement
indicates that it does not apply to street treatments such as wheel stops; and (2) the Agreement is
unenforceable as to NYCBS because New York City Administrative Code § 19–110 provides
Corwin a private right of action that cannot be waived. ECF No. 403. Invoking the same federal
and local rules, Corwin also seeks “clarification” of the Court’s decision as to the burden of
proof necessary to demonstrate the City’s liability, arguing that liability will be established if
City contractors affirmatively created the hazards that causes his injuries. Id.

2

Defendant City of New York (the “City”) moves for an order pursuant to 28 U.S.C. §
1292(b), permitting it to file an interlocutory appeal to the Court of Appeals for the Second
Circuit on the issue of whether New York State public policy prevents the City’s enforcement of
the Agreement as it applies to CitiBike stations on public roadways. ECF No. 401. In the
Opinion and Order, the Court held that such a waiver was contrary to the “public policy of
guaranteeing the safety of the users of City streets . . . that underlies its non-delegable duty to
keep streets and roadways safe,” and therefore found that it was unenforceable as to plaintiffs.
Corwin, 2017 WL 816134, at *15.
For the reasons set forth below, all of the motions, including Corwin’s motion for
clarification and reconsideration, Metro Express and Sealcoat’s motion for reconsideration and to
amend their answers, NYCBS’s motion for reconsideration, and the City’s motion for leave to
appeal under 28 U.S.C. § 1292(b) are DENIED.
LEGAL STANDARD
“The standards governing a motion for reconsideration under Local Rule 6.3 are the same
as those under Federal Rule of Civil Procedure 59(e).” Abrahamson v. Bd. of Educ., 237 F.
Supp. 2d 507, 510 (S.D.N.Y. 2002). To prevail on such a motion, “the movant must demonstrate
‘an intervening change of controlling law, the availability of new evidence, or the need to correct
a clear error or prevent manifest injustice.’” Catskill Dev., L.L.C. v. Park Place Entm’t Corp.,
154 F. Supp. 2d 696, 701 (S.D.N.Y. 2001) (quoting Doe v. NYC Dep’t of Soc. Servs., 709 F.2d
782, 789 (2d Cir. 1983)). “The standard for granting such a motion is strict, and reconsideration
will generally be denied unless the moving party can point to controlling decisions or data that
the court overlooked—matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 256–57 (2d Cir.

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1995). “[A] motion to reconsider should not be granted where the moving party seeks solely to
relitigate an issue already decided.” Id. at 257. Likewise, motions for reconsideration cannot be
based on arguments not previously raised. See Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d
Cir. 1998) (“Rule 59 is not a vehicle for . . . presenting the case under new theories, securing a
rehearing on the merits, or otherwise taking a ‘second bite at the apple.’”).
ANALYSIS
I.

Metro Express and Sealcoat’s Motions for Reconsideration
In support of their motion for reconsideration, Metro Express and Sealcoat argue that any

negligence claims maintained against them by Corwin should be released by virtue of the
Release Agreement because the Agreement applied by its terms to “agents” of the City and
NYCBS, and they were in an agency relationship with NYCBS. An essential characteristic of an
agency relationship is that the agent acts subject to the principal’s direction and control.
In re Shulman Transp. Enterprises, Inc., 744 F.2d 293, 295 (2d Cir. 1984). Under New York law,
“an agent must have authority, whether apparent, actual or implied, to bind his principal.” Merrill
Lynch Interfunding, Inc. v. Argenti, 155 F.3d 113, 122 (2d Cir. 1998). Demonstrating actual
authority requires “the following elements: (1) manifestation by the principal that the agent shall
act for him; (2) the agent accepted the undertaking; and (3) an understanding between the parties
that the principal is to be in control of the undertaking.” Spagnola v. Chubb Corp., 264 F.R.D.
76, 89 (S.D.N.Y. 2010) (citations omitted). Apparent authority requires “words or conduct of the
principal, communicated to a third party, that give rise to the appearance and belief that the agent
possesses authority to enter into a transaction.” Standard Funding Corp. v. Lewitt, 89 N.Y.2d
546, 551 (1997).

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Nevertheless, “[n]ot all relationships in which one person provides services to another
satisfy the definition of agency.” Artists Rights Enf’t Corp. v. Estate of King, No. 16-CV-1121
(JPO), 2016 WL 7192093, at *4 (S.D.N.Y. Dec. 12, 2016) (citing Restatement (Third) of Agency
§ 1.01 (2006)). Corwin, the City, and NYCBS argue that Metro Express and Sealcoat were not
agents of NYCBS and suggest that they were independent contractors. The fact that Metro
Express had some form of contractual relationship with NYCBS to perform services does not
automatically indicate that it was NYCBS’s agent. See Tartaglione v. Shaw’s Express, Inc., 790
F. Supp. 438, 441 (S.D.N.Y. 1992) (distinguishing agent from independent contractor who “in
exercising an independent employment . . . is not subject to the control of the [person with whom
he has contracted], except as to the result of his work”) (citation omitted).
Metro Express and Sealcoat rely extensively on Vornado Realty Trust v. Marubeni
Sustainable Energy, Inc., 987 F. Supp. 2d 267 (E.D.N.Y. 2013), where the district court applied a
release, containing similar “agent” language, negotiated between a property owner and a
contractor to a subcontractor. That case, however, is readily distinguishable. That court was able
to determine that “no reasonable jury could fail to conclude the [the subcontractor] was the agent
of the [contractor]” and that “there are no genuine issues of material fact as to whether an agency
relationship existed between [the two parties].” Id. at 281. Vornado Realty Trust certainly does
not stand for the proposition that all subcontractors are agents of their general contractors, and
the court’s decision was rooted in specific document and deposition discovery regarding the
parties’ intent and the scope of the release. Id. at 273–74.2

For this reason, the Court cannot, as Metro Express and Sealcoat suggest, simply apply the “law of the
case doctrine” to find that the release applies to them because it has already found that it is valid as to
NYCBS. While NYCBS is indisputably a “Released Person” under the Agreement, the Court’s Opinion
and Order made no findings as to whether Metro Express and Sealcoat were “agents” of the City or
NYCBS.
2

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The Court need not, however, wade into the complex “mixed question of law and fact,”
Commercial Union Ins. Co. v. Alitalia Airlines, S.p.A., 347 F.3d 448, 462 (2d Cir. 2003), in
determining whether or not Metro Express or Sealcoat were agents of the City or NYCBS. It is
clear that both defendants waived any claim that the Release Agreement barred Corwin’s claims
against them by failing to raise it as an affirmative defense in their answers and/or failing to
move to amend their answers in a timely fashion to include such a defense. Because they did not
raise the Release Agreement as an affirmative defense, no party had any incentive to conduct
discovery into the presence or absence of an agency relationship between Metro Express,
Sealcoat, and NYCBS or any other defendant. The Court is constrained to deny their eleventhhour, post-summary judgment motion to amend their answers to remedy this deficiency, because
such an amendment would cause substantial prejudice to the remaining parties.
A.

Metro Express and Sealcoat’s Deficient Answers

On February 22, 2016, Sealcoat filed its answer, alleging a Seventh Affirmative Defense
that “[t]he plaintiffs’ actions are barred by the doctrine of waiver, estoppel, laches, and/or
ratification.” ECF No. 211. On February 23, 2016, Metro Express filed an answer raising as its
Eighth Affirmative Defense that “[p]laintiff’s claims are barred by the applicable statute(s) of
limitation and/or the doctrine of laches, waiver and/or estoppel” and as its Tenth Affirmative
Defense that “[p]laintiffs’ claims are barred by the doctrines of waiver and/or estoppel.” ECF
No. 213 at ¶¶ 453, 455. As Corwin argues, while these affirmative defense make a general
reference to “waiver,” they are reasonably construed to refer to defenses grounded in undue
delay or conduct inconsistent with Corwin’s claims, not those relating to an exculpatory release
agreement.

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Metro Express and Sealcoat were fully aware of the contents of the Release Agreement at
issue. Corwin affirms that the Release Agreement was provided as an exhibit to these defendants
before their joinder in this case as early as October 30, 2015, months before their answer was
due. Pls.’ Opp. Mem, ECF No. 417 at 9–10. Corwin’s Local Civil Rule 56.1 Statement,
submitted in support of his summary judgment motion, alleged that neither Metro Express nor
Sealcoat was an agent or otherwise a “Released Person” under the terms of the Release
Agreement (ECF No. 310 at ¶¶ 37–38), and neither defendant submitted a counter-statement to
this statement. Therefore, these statements were deemed admitted for the purpose of the
summary judgment motion. See S.D.N.Y. Local Civil Rule 56.1(c) (“Each number paragraph in
the [56.1 Statement] will be deemed to be admitted for purposes of the motion unless specifically
controverted by a correspondingly numbered paragraph in the statement required to be served by
the opposing party.”)
B.

Metro Express and Sealcoat’s Tardy Motions to Amend their Answers

Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely given
when justice so requires.” In general, “[t]he rule in this Circuit has been to allow a party to
amend its pleadings in the absence of a showing by the nonmovant of prejudice or bad faith.”
Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993); see also State Teachers Ret. Bd.
v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981) (“Reasons for a proper denial of leave to amend
include undue delay, bad faith, futility of the amendment, and perhaps most important, the
resulting prejudice to the opposing party.”). Absent a showing of bad faith or undue prejudice,
“mere delay . . . does not provide a basis for a district court to deny the right to amend.” Ruotolo
v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting State Teachers, 654 F.2d at
856). In determining what constitutes “prejudice,” courts consider whether the assertion of the
new claim would: (i) require the opponent to expend significant additional resources to conduct
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discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii)
prevent the plaintiff from bringing a timely action in another jurisdiction. Block, 988 F.2d at 350
(citations omitted). “[T]he longer the period of an unexplained delay, the less will be required of
the nonmoving party in terms of a showing of prejudice.” Evans v. Syracuse City Sch. Dist., 704
F.2d 44, 47 (2d Cir. 1983). Therefore, a district court may “deny leave to amend where the
motion is made after an inordinate delay, no satisfactory explanation is offered for the delay, and
the amendment would prejudice the defendant.” Cresswell v. Sullivan & Cromwell, 922 F.2d 60,
72 (2d Cir. 1990).
Metro Express and Sealcoat have offered no explanation for their inexplicable failure to
assert this defense in a remotely timely fashion. In addition to the months of discovery that
preceded summary judgment motion practice, there were at least four separate motions for
summary judgment that exhaustively briefed the issue of whether the Release Agreement was
enforceable. These motions were fully briefed as of November 3, 2016. Only at oral argument on
January 12, 2017, upon direct questioning by the Court, did either Metro Express or Sealcoat
even intimate that they may be covered by the Release Agreement. ECF No. 422 at 50–53. But at
no point during discovery, during summary judgment briefing, or after oral argument did Metro
Express or Sealcoat move to amend their answer to add the relevant affirmative defenses in line
with the arguments asserted by their fellow defendants.
It is obvious that allowing these defendants leave to amend their complaint less than two
months before trial would unduly prejudice Corwin and the other defendants. As stated above,
the question of whether Metro Express and Sealcoat were “agents” of the City or NYCBS is a
mixed question of law and fact. The fair resolution of such a question would require discovery
into the drafting of the Release Agreement, the intended scope of the word “agent” therein, and

8

nature of the relationship between these defendants. Instead, their failure to plead the affirmative
defense meant that, as Corwin argues, “there was no need to conduct discovery on a defense not
asserted.” Pls.’ Opp. Mem, ECF No. 417 at 12. The taking of such discovery would now be
impossible, and unduly delay the trial date in a case that is now over three years old. Cf.
Morse/Diesel, Inc. v. Fid. & Deposit Co. of Maryland, No. 86-CV-1494 (DLC), 1995 WL
358627, at *6 (S.D.N.Y. June 15, 1995) (“Permitting the amendment at this point would require
reopening discovery . . . and delaying the trial date. Under no circumstances will the Court
permit the trial date in this action to move. The undue prejudice to [plaintiff] if the amendment
were permitted, by itself, requires denial of the amendment.”).
Metro Express argues that despite their failure to raise the Agreement as an affirmative
defense, as a matter of fact, “there was an abundance of discovery concerning NYCBS’[s]
relationship with Metro Express” that would permit the parties and the Court to determine that it
was NYCBS’s agent. Metro Express/Sealcoat Reply Mem., ECF No. 432 at 2. It references
numerous facts in the record that suggest a high level of control by NYCBS, and notes the
extensive depositions taken of its General Manager, as well as those NYCBS employees who
communicated with the General Manager most frequently. Id. at 4. Sealcoat further argues that
the record shows that it is an agent under the doctrine of subagency. Restatement (Third) of
Agency § 3.15 (2006).
The mere fact that significant discovery was conducted regarding the relationship
between Metro Express/Sealcoat and NYCBS does not erase the prejudice to Corwin and the
other parties. Whatever their motivation for seeking extensive discovery into the NYCBS-Metro
Express/Sealcoat relationship, it was indisputably not tied to their status under the Release
Agreement because such an affirmative defense was never raised.

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Accordingly, because Corwin and the other parties to this case would be unfairly
prejudiced by Metro Express and Sealcoat’s proposed amendment to their answers, and because
they have offered no explanation for the undue delay in making their motion, Metro Express and
Sealcoat’s motion to amend their answer and their motion for reconsideration are DENIED.
Because Corwin may maintain common-law negligence claims against them, Metro Express and
Sealcoat’s motion for joinder in NYCBS’s motion for reconsideration regarding gross negligence
is DENIED as moot.
II.

Corwin’s Motion for Reconsideration
A.

Clarification of Burden of Proof for the City’s Liability

Corwin first argues that the Court erred in using language in its Opinion and Order
suggesting that the City may only be found liable through the affirmatively negligent actions of
its employees, and not through affirmatively negligent actions of its contractors and
subcontractors. In his view, the Opinion and Order should reflect “that the City may be held to
have affirmatively create a hazardous roadway condition strictly through the actions of its
contractors and subcontractors.” Pls. Mem at 7, ECF No. 405.
The language in the Opinion and Order with which Corwin quibbles is the section in
which the Court determined that there was a genuine dispute of material fact as to whether the
City was affirmatively negligent so as to lose the written notice protections of § 7-201(c)(2),
popularly known as the “Pothole Law.” Corwin certainly does not ask the Court to reconsider
that conclusion, which is favorable to him. At the summary judgment stage, the Court needed to
do no more, as its task was “carefully limited to discerning whether there are any genuine issues
of material fact to be tried, not to deciding them.” Gallo v. Prudential Residential Servs., LP, 22
F.3d 1219, 1224 (2d Cir. 1994). Indeed, the Court concluded that the available evidence “could

10

lead a reasonable finder of fact to conclude that either the specific wheel stop in question, or all
wheel stops that enter into the foreseeable pathway of a cyclist, were installed pursuant to
affirmative acts of negligence by the City.” Corwin, 2017 WL 816134, at *22. The Court’s
decision did not describe, nor should it have described, the types of evidence necessary to prove
the City’s liability or plaintiff’s burden of proof at trial. These questions are appropriately raised
at a jury charge conference, not in a request to “clarify” or revise a summary judgment decision
limited to identifying genuine disputes of material fact for trial.
Accordingly, Corwin’s request to “clarify” this portion of the Opinion and Order is
DENIED.
B.

Definitions of “Services,” “Stations,” “Related Information,” and “Related
Equipment” in the CitiBike User Agreement

Corwin argues that the Court failed to scrutinize properly the language of the Release
Agreement, and that had it done so, it would have concluded that the wheel stop and other “street
treatments” were “public road conditions” that were neither “services,” “stations,” “related
information,” or “related equipment” as defined in the Agreement. In support of his argument,
Corwin cites to definitions in Paragraph 1.15 and 1.41 of the agreement between the City and
NYCBS, which appears to define “station” and “equipment” in a way that excludes street
treatments such as wheel stops.
Whatever the merits of this argument, it is a novel contract interpretation theory that was
not raised during the extensive summary judgment briefing on the very question of the
applicability and enforceability of the Release Agreement. There has plainly been no
“intervening change of controlling law” nor has “new evidence” arisen that was previously
unavailable to Corwin. Summary judgment briefing is not an iterative process, and a motion for
reconsideration is “not a vehicle for . . . presenting the case under new theories, securing a
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rehearing on the merits, or otherwise taking a ‘second bite at the apple.’” Sequa Corp., 156 F.3d
at 144. Corwin may not raise new theories on reconsideration, merely because the theories he
argued regarding the Release Agreement on summary judgment proved unsuccessful.
Accordingly, because Corwin’s argument was not raised during the briefing, either in
support of his own motion for partial summary judgment or in opposition to the defendants’
motion, he has not met the requirements to raise the issue on a motion to reconsideration.
Therefore, the motion for the Court to reconsider its decision regarding the scope of the Release
Agreement is DENIED.
C.

New York City Administrative Code § 19–110

Corwin argues that the Court failed to apply controlling law in finding that New York
City Administrative Code (“NYCAC”) § 19–110 did not provide him with a private right of
action that could not be released by a contractual waiver clause by reasons of public policy. In
support of this argument, Corwin attaches a voluminous appendix of legislative history dating
back to 1839 that he alleges indicates that a private right of action should be implied.
Even assuming that Corwin’s argument is properly raised on a motion for reconsideration
(a dubious proposition, given that this legislative history evidence was available and not
proffered during the briefing of the summary judgment motions), the fact that the statute, in
various iterations, has been part of New York law since 1839 is a powerful argument against
Corwin’s position. Surely, in the nearly 180 years of the statute’s existence, many individuals
have been harmed by negligent contractors performing work pursuant to permits on New York
City streets. The fact that Corwin cannot cite to a single federal or state court decision that has
interpreted the statute to provide an implied right of action against such contractors supports the
Court’s construction that NYCAC § 19–110 does no more than provide that “the City may seek

12

contribution for damages to third parties occasioned by a negligent contractor or property owner
conducting work pursuant to a municipal permit.” Corwin, 2017 WL 816134, at *10.
Finally, even if the Court were to ignore the weight of almost two hundred years of
judicial silence on this question and imply a private right of action, it could not possibly
conclude that this was a non-waivable “public policy.” In finding that the City’s duty to keep its
streets in a reasonably safe condition could not be waived as a matter of public policy, the Court
relied on the sound jurisprudential foundation of centuries of New York state court decisions that
spoke of an “absolute” duty that could not be delegated to third parties. See, e.g., Storrs v. City
of Utica, 17 N.Y. 104, 108–09 (1858) (finding that municipal corporations “owe[ ] to the public
the duty of keeping its streets in a safe condition for travel” and “although the work may be let
out by contract, the corporation still remains charged with the care and control of the street in
which the improvement is carried on . . . [and cannot] either avoid indictment in behalf of the
public or its liability to individuals who are injured.”) No similar basis exists with regards to
NYCAC § 19–110.
Accordingly, the motion for the Court to reconsider its decision regarding the
applicability of NYCAC § 19–110 is DENIED.
III.

NYCBS’s Motion for Reconsideration
NYCBS argues that the Court should reconsider its decision that summary judgment was

not appropriate on Corwin’s gross negligence claims, which are the only surviving claims against
it. It contends that there are no facts that could meet New York’s exacting standards to prove
gross negligence, which require “conduct that evinces a reckless disregard for the rights of others
or ‘smacks’ of intentional wrongdoing.” Am. Tel. & Tel. Co. v. City of New York, 83 F.3d 549,
556 (2d Cir. 1996) (quoting Colnaghi, U.S.A., Ltd. v. Jewelers Prot. Servs., Ltd., 81 N.Y.2d 821,

13

823–24 (1993)). Specifically, NYCBS states that it was not responsible for creating the plans and
specifications for the bike share stations to which Corwin’s expert ng . Green objects, which was
done by the City and the architecture and design firm Alta Planning + Design, Inc. (“APD”).
Therefore, according to NYCBS, even if Mr. Green’s conclusions regarding the station design
are wholly correct (which it contests), its reliance on the City and APD’s expert opinions could
not have been grossly negligent as a matter of law.3
Corwin responds that there are a number of facts in the record that could support a
finding of gross negligence, such as, inter alia, NYCBS’s inability to explain why the
installation deviated materially from the approve plan prepared by APD, the lack of a validation
process to compare approved plans with actual installations, NYCBS’s ignoring numerous
complaints about injuries occasioned by wheel stops and failure to keep track of such
complaints, the fact that the Station where Corwin’s accident occurred was opened to the public
without any inspections, because no safety inspection protocol was in place, and NYCBS’s
failure to supervise contractors such as Metro Express, despite the fact that they knew they were
chronically behind schedule and/or potentially failing to comply with approved site plans.
“New York courts set the bar quite high . . . demanding nothing short of . . . a compelling
demonstration of egregious intentional misbehavior evincing extreme culpability: malice,
recklessness, deliberate or callous indifference to the rights of others, or an extensive pattern of
wanton acts.” Deutsche Lufthansa AG v. Boeing Co., No. 06-CV-7667 (LBS), 2007 WL 403301,
at *3 (S.D.N.Y. Feb. 2, 2007) (citations omitted). NYCBS’s moving papers focus primarily on

NYCBS also raises a challenge towards Mr. Green’s expert testimony under Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993), arguing that because there were no generally accepted engineering
design standards for on-street bike share facilities, Mr. Green’s assertions that the standards, bike corrals,
and parking areas were applicable to such facilities was arbitrary ipse dixit. Because this argument was
available to the parties but not raised during the summary judgment briefing, the Court cannot consider it
on a motion for reconsideration. ” See Sequa Corp., 156 F.3d at 144.
3

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the allegations made by Corwin’s expert James M. Green and argue that because NYCBS was
relying on allegedly negligent advice provided by design professionals from APD and the City, it
could not possibly have had the requisite level of culpability necessary for a finding of gross
negligence. The Court agrees that, given the undisputed fact that NYCBS relied on these design
professionals in implementing the installation of stations and accompanying street treatments,
there is no evidence in the record that could lead a reasonable factfinder to conclude that
NYCBS’s conduct in relying on the design professionals’ site plans met New York’s exacting
gross negligence standard. As NYCBS argues, demonstrating “ignorance once removed” does
not demonstrate the “extreme culpability” necessary to prove gross negligence under New York
law based on its reliance on advice from design professionals. NYCBS Mem., ECF No. 402-1, at
1. Therefore, upon reconsideration of the record, the Court’s statement in Corwin that NYCBS
could be found grossly negligent at trial if it is found “to have unjustifiably ignored sound
engineering practices and placed camouflaged wheel stops in the direct and foreseeable paths of
cyclists” is withdrawn. Corwin, 2017 WL 816134, at *28.
This does not, however, fully resolve the issue. Construing the evidence in the record in
the light most favorable to the nonmoving party, as is appropriate in evaluating a summary
judgment motion, the Court finds that its determination that “a reasonable factfinder could
conclude that [NYCBS’s] conduct was sufficiently reckless and/or aggravated to meet the gross
negligence standard” remains valid. Corwin, 2017 WL 816134, at *28. Wholly apart from
whether NYCBS reasonably relied on the City and APD’s engineering guidance, NYCBS
owned, operated, and maintained the Citi Bike program. Corwin has alleged that NYCBS wholly
failed to have any process that ensured that Citi Bike stations as built actually conformed to the
site plans, had no inspection process in place before opening stations to the general public, and

15

entirely failed to supervise its contractors—both generally and in regards to the station with the
allegedly unauthorized wheel stop where his accident occurred. Given that NYCBS was charged
with administering a popular public program used by over a million users, which involved
installing potentially hazardous equipment on public thoroughfares, the jury could find that a
failure to institute such protections constitutes “a reckless disregard for the rights of others.”
Accordingly, although the Court reconsiders its initial language about the nature of the
evidence necessary to prove NYCBS’s gross negligence, because a genuine issue of material fact
continues to exist regarding whether NYCBS was grossly negligent, NYCBS’s motion for
reconsideration is otherwise DENIED. The jury will be charged appropriately under New York’s
exacting standard of gross negligence.
IV.

The City’s Motion for Leave to File an Interlocutory Appeal
A.

Legal Standard

Section 1292(b) provides for certification of an order for interlocutory appeal when the
court determines: “(1) that such order involves a controlling question of law (2) as to which there
is a substantial ground for difference of opinion and (3) that an immediate appeal from [that]
order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b).
The Court of Appeals for the Second Circuit has, however, made clear that interlocutory appeals
are disfavored, and are “a rare exception to the final judgment rule that generally prohibits
piecemeal appeals.” Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir. 1996); see
also McNeil v. Aguilos, 820 F.Supp. 77, 79 (S.D.N.Y. 1993) (Sotomayor, J.) (“‘These three
prerequisites create a significant hurdle to certification, and the barrier is only elevated by the
mandate that section 1292(b) be ‘strictly limited’ because ‘only exceptional circumstances [will]
justify a departure from the basic policy of postponing appellate review until after the entry of a

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final judgment.’”) (citing Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990));
Westwood Pharm., Inc. v. Nat’l Fuel Gas Distribution Corp., 964 F.2d 85, 89 (2d Cir. 1992)
(urging “district courts to exercise great care in making a § 1292(b) certification”).
“Courts place particular weight on . . . whether immediate appeal will materially advance
the ultimate termination of the litigation.” Florio v. City of New York, No. 06-CV-6473(SAS),
2008 WL 3068247, at *1 (S.D.N.Y. Aug. 5, 2008); see also Koehler, 101 F.3d at 865–66 (“The
use of § 1292(b) is reserved for those cases where an intermediate appeal may avoid protracted
litigation.”). “An immediate appeal is considered to advance the ultimate termination of the
litigation if that appeal promises to advance the time for trial or to shorten the time required for
trial.” Florio, 2008 WL 3068247, at *1 (citations omitted).
B.

Application

The City argues that the Court’s decision that it could not waive its non-delegable duty to
keep streets and roadways safe by means of a contractual release is ripe for certification of an
interlocutory appeal to the Court of Appeals.
There is no question that the first two statutory criteria are met in this case. First, “[a]
controlling question of law exists if: (1) reversal of the district court’s opinion could result in
dismissal of the action, (2) reversal of the district court’s opinion, even though not resulting in
dismissal, could significantly affect the conduct of the action, or (3) the certified issue has
precedential value for a large number of cases.” Flo & Eddie, Inc v. Sirius XM Radio Inc., No.
13-CV-5784 (CM), 2015 WL 585641, at *1 (S.D.N.Y. Feb. 10, 2015) (citation omitted). In this
case, a finding that the City may enforce the Release Agreement would lead to the dismissal of
Corwin’s negligence claims against the City, which would “significantly affect the conduct of
the action.” Second, a substantial ground for difference of opinion exists when “(1) there is

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conflicting authority on the issue, or (2) the issue is particularly difficult and of first impression
for the Second Circuit.” In re Facebook, Inc., IPO Sec. & Derivative Litig., 986 F. Supp. 2d 524,
539 (S.D.N.Y. 2014) (citation omitted). As the Court readily acknowledged in its Opinion and
Order, the question decided is indeed an issue of first impression, and “[n]o case has considered
the specific question of whether a municipality’s duty to keep its streets in a reasonably safe
condition for travel can be waived by contract.” Corwin, 2017 WL 816134, at *14.
Section 1292(b) is not, however, a mere safety valve for district courts to avoid deciding
difficult questions. See Koehler, 101 F.3d at 865–66 (noting that “[i]t is a basic tenet of federal
law to delay appellate review until a final judgment has been entered”); see also id. at 864
(referring to “§ 1292(b)’s intended purpose” as that of allowing the Court of Appeals “to rule on
an ephemeral question of law that may disappear in the light of a complete and final record.”).
In this case, it is plain that permitting an interlocutory appeal at this juncture, on the very
eve of trial, would severely delay the termination of the litigation. Such an appeal would lead to
the proceedings being stayed, potentially for years, as to all parties. On the contrary, proceeding
to trial and final judgment would lead to a prompt finding as regards to liability and damages as
to all the defendants remaining in the case, while preserving the City’s ability to appeal in the
ordinary course on the question of law it identifies in the event that it is found liable. See, e.g.,
Century Pac., Inc. v. Hilton Hotels Corp., 574 F. Supp. 2d 369, 373 (S.D.N.Y. 2008) (denying
certification where “it appears more likely that the granting of an immediate appeal will . . .
prolong[] litigation”); In re World Trade Ctr. Disaster Site Litig., 469 F. Supp. 2d 134, 145
(S.D.N.Y. 2007) (denying certification where “substantial delay is a likely consequence of
interlocutory appeal at this stage in the litigation”).

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Accordingly, because the City cannot demonstrate that an interlocutory appeal would
“materially advance the termination of the litigation” to overcome the presumption that the final
judgment rule applies, the City’s motion for leave to file an interlocutory appeal under 28 U.S.C.
§ 1292(b) is DENIED.
CONCLUSION
The motions for reconsideration filed by plaintiffs Ronald D. Corwin and Beth
Blumenthal, Metro Express Services, Inc., Sealcoat USA, Inc., NYC Bike Share, LLC, and Alta
Bicycle Share, Inc./Motivate International are all DENIED. The motions to amend their answers
filed by Metro Express Services, Inc. and Sealcoat USA, Inc. are DENIED. The City of New
York’s motion for leave to file an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) is
DENIED. Insofar as the Court has denied Metro Express Services, Inc. and Sealcoat USA, Inc.
motions for leave to amend and reconsideration, their motion for joinder to NYC Bike Share,
LLC, and Alta Bicycle Share, Inc./Motivate International’s motion for reconsideration is
DENIED as moot.
The Clerk of Court is respectfully requested to close Dkt. Nos. 400, 401, 402, 403, and
406.
SO ORDERED.

DATED:

New York, New York
April 7, 2017

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