Opinion
Index No. 702935/2018 Motion Seq. No. 3
03-31-2021
Janet Canfield. Plaintiff. v. Port Authority, Defendant.
Unpublished Opinion
Motion Date August 13, 2020
LESLIE J. PURIFICACION JUSTICE
The following numbered papers read on this motion by defendants The Port Authority of New York &New Jersey and Delta Air Lines. Inc., i/s/h/a Delta Airlines. Inc. (collectively referred to as defendants), for summary judgment pursuant to CPLR §3212. dismissing the complaint of plaintiff Janet Canfield (plaintiff), together with all cross claims.
| Papers Numbered | |
| Notice of Motion - Affidavits - Exhibits............................................. | EF 56-71 |
| Answering Affidavits - Exhibits.......................................................... | EF 72-73 |
| Reply Affidavits................................................................................... | EF 74 |
Upon the foregoing papers it is ordered that the motion is determined as follows:
This is an action sounding in negligence to recover damages for personal injuries that plaintiff allegedly sustained on or about June 6. 2017, at premises known as Laguardia Airport. Terminal C. Gale C42. Plaintiff has alleged that while she was a pedestrian at the premises, she was caused lo slip and/or trip and fall and sustain severe and permanent injuries. Plaintiff has alleged that The Port Authority of New York &New Jersey (Port Authority), owned, operated, controlled, maintained, managed, and repaired the premises, including the building, terminal, appurtenances and fixtures. Plaintiff has further alleged that Port Authority leased the subject premises to Delta Air Lines. Inc., i/s/h/a Delta Airlines. Inc. (Delta Air Lines), which operated, controlled, managed, maintained, and repaired the premises, including the building, terminal, appurtenances and fixtures.
Defendants have now moved for summary judgment pursuant to CPLR § 3212. to dismiss plaintiffs complaint together with all cross claims. In support of their motion, defendants have first argued that no defect existed, and that even if a defect is found to have existed, any alleged defect was de minimis, open and obvious, and trivial in nature. "'To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented" (Matter of New York City Asbestos Litig., 33 N.Y.3d 20,25 [2019], quoting Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 N.Y.2d 439, 441 [1968]).
"'Summary judgment should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable'" (Matter of New York City Asbestos Litig., 33 N.Y.3d at 25. quoting Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295. 315 [2004]). On summary judgment, "facts must be viewed in the light most favorable to the non-moving party" (Matter of New York City Asbestos Litig., 33 N.Y.3d at 25 [internal quotes omitted]), and "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law. tendering sufficient evidence to demonstrate the absence of any material issues of fact" (id., at 25-26. quoting Alvarez v Prospect Hosp.. 68 N.Y.2d 320. 324 [1986]).
"An owner ... in possession of realty owes a duty of reasonable care to maintain the property in a reasonably safe condition" (Abdul-Azim v RDC Commercial Ctr.. 210 A.D.2d 191 [2d Dept 1994]: see Slavin v Vil. of Sleepy Hollow. 150 A.D.3d 924. 925 [2d Dept 2017]; Yehia v Marphil Realty Corp., 130 A.D.3d 615, 616 [2d Dept 2015]). "A property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip" (K. A. v City of New York, 188 A.D.3d 964, 965 [2d Dept 2020]; see Deryv K Mart Corp.. 84 A.D.3d 1303. 1304 [2d Dept 2011|; Copley v Town of Riverhead. 70 A.D.3d 623, 624 [2d Dept 2010]).
Whether an alleged defect is trivial depends upon an "examination of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the 'time, place and circumstance' of the injury" (Trincere v County of Suffolk, 90 N.Y.2d 976. 978 [1997]. quoting Caldwell v Village of Is. Park. 304 NY 268. 274 [1952 ]; see K. A. v City of New York. 188 A.D.3d at 965: Ryan v KRT Prop. Holdings. LLC. 45 A.D.3d 663. 665 12d Dept 2007]). However, "a mechanistic disposition of a case based exclusively on the dimension of [a] defect is unacceptable." and "whether a dangerous or defective condition exists on the property of another so as to create liability 'depends on the peculiar facts and circumstances of each case' and is generally a question of fact for the jury" (Trincere v Count)' of Suffolk. 90 N.Y.2d at 977).
Furthermore. "[w]hile a landowner or occupant has a duty to maintain its premises in a reasonably sale manner, there is no duty to protect or warn against open and obvious conditions that are not inherently dangerous" (Gutman v Todt Hill Plaza. LLC. 81 A.D.3d 892 [2d Dept 2011] | internal citation omitted]; see Brett v AJ1086 Assoc.. LLC. 189 A.D.3d 1153 [2d Dept 2020]; Holdos v American Consumer Shows. Inc.. 91 A.D.3d 823 [2d Dept 2012]). -The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case'" {Brett v AJ 1086 Assoc., LLC. 189 A.D.3d at I 153. quoting Holmes v Macy's Retail Holdings. Inc., 184 A.D.3d 811, 811 [2d Dept 2020]).
The record contains, among other things, copies of the pleadings, plaintiff's affidavit and deposition testimony, the deposition testimony of non-party Cem Demircanli (Demircanli). an employee of non-party ISS Facilities. Inc. (ISS). who appeared on defendants' behalf, and photographs of the premises in the area where plaintiff allegedly fell. Plaintiff testified that while walking through the gate are of the terminal, after she turned a corner, she tripped and fell over a raised portion or the "lip" of an aluminum metal plate which spanned the width of the floor. Plaintiff testified that top of the raised portion of the metal plate measured approximately one inch above the floor. Plaintiff further testified that she did not see the metal plate before her fall and that she did not know what caused the alleged condition of the floor, had no knowledge of any prior accidents involving the alleged condition, and had no knowledge of whether there had been any complaints made to defendants regarding the alleged condition.
Demircanli testified that he was employed as a Facilities Director for the "Delta Terminal" within Laguardia Airport, that contracted with Delta Air Lines for maintenance services within Laguardia Airport and that, in general. Delta Air Lines relied upon his employer. ISS. for maintenance issues, including relating to the floor. Demircanli further testified that he did not know if the floor of the terminal where the subject accident occurred underwent any renovations prior to June 2017. and that the metal plate that plaintiff allegedly tripped and fell on was installed over an "expansion joint" and was intended to "eliminate possible trip hazard due to the expansion joint." I Ie testified that although he never measured the metal plate itself, he estimated that the top of it measured approximately one quarter of an inch in height above the floor.
Demircanli testified that he did now know when the metal plate was installed, that ISS hired non-party Millennium Contracting to install the metal plate, and that Della Air Lines left the installation entirely up to ISS and ISS's contractors. He further testified that while he did not know of any prior accidents or complaints relative to this specific metal plate, he did not know if Delta Air Lines ever inspected the metal plate.
Based upon a careful review of the evidence in the record, including the conflicts between plaintiffs and Dcmircanli's testimony, and unclear copies of photographs of the alleged defect, as well as taking into consideration the location and appearance of the defect along with the time, place and circumstance of plaintiff s alleged injuries, genuine issues of material fact remain as to whether the alleged defect was too trivial to be actionable as a matter of law or was open and obvious (see Trincere v County' of Suffolk, 90 N.Y.2d at 978; 2008]: Alvarez v Prospect Hosp., 68 N.Y.2d at 324: Hanus v Long Is. Rail Rd.. 186 A.D.3d 679. 682 [2d Dept 2020]: Bishop v Pennsylvania Ave. Mgt., LLC. 183 A.D.3d 685 |2d Dept 2020]: Hahn v Wilhelm. 54 A.D.3d 896. 898-899 [2d Dept 2008]).
Defendants have also argued that plaintiff cannot establish that defendants created the alleged condition or had notice of it. In order "[t]o impose liability upon a defendant in a trip-and-fall action, there must be evidence that a dangerous or defective condition existed, and that the defendant either created the condition or had actual or constructive notice of it" (Dennehy-Murphy v Nor-Topia Serv. Ctr., Inc., 61 A.D.3d 629 [2d Dept 2009]: see Alonzo v City of New York. 188 A.D.3d 1123, 1125 [2d Dept 2020]: Vargas v Lamberti. 186 A.D.3d 1572. 1573 12d Dept 2020]; Denker v Century' 21 Dept. Stores, LLC, 55 A.D.3d 527, 528 [2d Dept 2008]). "To constitute constructive notice, a condition must be visible and apparent, and must exist for a sufficient length of time before the accident to permit the defendant to discover and remedy it" (Deveau v CF Galleria at White Plains, LP. 18 A.D.3d 695 [2d Dept 2005]: see Gordon v American Museum of Natural History. 67 N.Y.2d 836. 837-838 [ 1986]; Vargas v Lamberti. 186 A.D.3d at 1573; Chang v Marmon Enterprises, Inc., 172 A.D.3d 678, 679 [2d Dept 2019]; Medina v La Fiura Dev. Corp.. 69 A.D.3d 686 [2d Dept 2010]). "To meet its prima facie burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the lime when the plaintiff fell" (Meade v New York City Hous. Auth., 189 A.D.3d 1390 [2d Dept 2020]; see Merchant v New York City Tr. Auth., 183 A.D.3d 647 [2d Dept 2020]; Pryzywalny v New York City Tr. Auth., 69 A.D.3d 598. 599 [2d Dept 2010]; Birnbaum v New York Racing Assn.. Inc.. 57 A.D.3d 598. 599 [2d Dept 20081).
However, a careful review of the evidence in the record has demonstrated that defendants have failed to point to sufficient evidence to eliminate all triable issues of fact as to whether they had constructive notice of the alleged condition (see Alvarez v Prospect Hosp.. 68 N.Y.2d at 324; Asprou v Hellenic Orthodox Community' of Astoria. 185 A.D.3d 641. 642 [2d Dept 2020]; Griffin v PMV Realty, LLC. 181 A.D.3d 912. 913 [2d Dept 2020]).
Defendants must do more than merely point to the gaps in plaintiffs case (see Lauzon v Stop Shop Supermarket. 188 A.D.3d 856 [2d Dept 2020]; Vumbico v Estate of Wiltse, 156 A.D.3d 939. 94112d Dept 2017]), Therefore, defendants have failed to establish prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d at 324).
Accordingly, defendants' motion is denied in its entirety.