Bahr v. Airway Cleaners, Inc., 2008 NY Slip Op 32491(U) (N.Y. Sup. Ct. 9/8/2008), Index No: 11589/06.

• Decision Date: 08 September 2008
• Docket Number: Motion Seq. No: 4 & 5.,Motion Cal. No: 4 & 5.,Index No: 11589/06.
• Citation: 2008 NY Slip Op 32491
• Parties: WILLIAM BAHR, Plaintiff, v. AIRWAY CLEANERS, INC., UNITED AIRLINES, INC., UAL CORPORATION, INC., and TERMINAL ONE, INC., Defendants.
• Court: New York Supreme Court

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2008 NY Slip Op 32491(U)

WILLIAM BAHR, Plaintiff, v. AIRWAY CLEANERS, INC., UNITED AIRLINES, INC., UAL CORPORATION, INC., and TERMINAL ONE, INC., Defendants.

Index No: 11589/06.

Motion Cal. No: 4 & 5.

Motion Seq. No: 4 & 5.

Supreme Court of the State of New York, Queens County.

September 8, 2008.

Motion Date: June 11, 2008.

PATRICIA P. SATTERFIELD, Judge.

Upon the foregoing papers, it is hereby ordered that the motions are disposed of as follows:

This is an action for personal injuries allegedly sustained by plaintiff during the course of his employment as an airline pilot employed by defendant United Airlines, Inc. ("United"), to recover damages as the result of a trip and fall on an interior stairwell leading from the C Concourse Level to the Flight Operations Level in the United terminal at LaGuardia Airport on October 3, 2003. Plaintiff commenced this action against defendant Airway Cleaners ("Airway"), a maintenance company, United, his employer, defendant UAL Corporation, Inc. ("UAL"), a holding company and United's corporate parent, and Terminal One, Inc. ("Terminal One"), the alleged owner of the building leased to United for use as its terminal.¹ Airway now moves for summary judgment dismissing the complaint and an award of sanctions, costs and attorneys' fees. Defendants United and UAL move for the same relief.

Summary Judgment Motions

Summary judgment should be granted when there is no doubt as to the absence of triable issues. See, Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978); Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974); Taft v. New York City Tr. Auth., 193 A.D.2d 503, 505 (1^st Dept. 1993). As such, the function of the court on the instant motion is issue finding and not issue determination. See, D.B.D. Nominee, Inc., v. 814 10th Ave. Corp., 109 A.D.2d 668, 669 (2^nd Dept. 1985). The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. See, Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position. See, Zuckerman v. City of New York, supra.

The initial question in a negligence action is whether the alleged tortfeasor owed a duty of care to the injured party [see, Church ex rel. Smith v. Callanan Industries, Inc., 99 N.Y.2d 104 (2002); Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136 (2002); Eaves Brooks Costume Co., Inc. v. Y.B.H. Realty Corp., 76 N.Y.2d 220 (1990); Sheila C. v. Povich, 11 A.D.3d 120 (1^st Dept. 2004)], and the existence and scope of that duty are legal questions for the courts to determine. See, 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280 (2002); Solan v. Great Neck Union Free School Dist., 43 A.D.3d 1035 (2^nd Dept. 2007); Daubert v. Flyte Time Regency Limousine, 1 A.D.3d 395 (2^nd Dept. 2003). In premises liability cases, it is well recognized that to "'establish a prima facie case of negligence, a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff (citations omitted)."[L]iability for a dangerous condition on property is generally predicated upon ownership, occupancy, control or special use of the property (citations omitted).' `The existence of one or more of these elements is sufficient to give rise to a duty to exercise reasonable care (citations omitted)." Nappi v. Incorporated Village of Lynbrook, 19 A.D.3d 565 (2^nd Dept. 2005); see, Comack v. VBK Realty Associates, Ltd., 48 A.D.3d 611 (2^nd Dept. 2008); Vetrone v. Ha Di Corp., 22 A.D.3d 835 (2^nd Dept. 2005). Here, it is determined by this Court that insofar that plaintiff failed to show that Airway had any responsibilities associated with the stairway upon which he fell, it owed no duty of care to plaintiff in the first instance to impose liability upon it for the happening of plaintiff's accident.

In any event, "[t]he imposition of liability for a dangerous condition on property must be predicated upon occupancy, ownership, control, or special use of the premises." Casale v. Brookdale Medical Associates, 43 A.D.3d 418 (2^nd Dept. 2007). In the case at bar, Airway did not own, occupy, control, or put to a special use the subject stairwell, nor did it have any right or obligation to maintain that area, thus it established, as a matter of law, its entitlement to judgment in its favor. See, Ellers v. Horwitz Family Ltd. Partnership, 36 A.D.3d 849 (2^nd Dept. 2007); Morgan v. Chong Kwan Jun, 30 A.D.3d 386 (2^nd Dept. 2006); Franks v. G & H Real Estate Holding Corp., 16 A.D.3d 619 (2^nd Dept. 2005); DePompo v. Waldbaums Supermarket, Inc., 291 A.D.2d 528 (2^nd Dept. 2002); Welwood v. Association for Children With Down Syndrome, Inc., 248 A.D.2d 707 (2^nd Dept. 1998). In opposition, plaintiff failed to come forward with any evidence that this defendant had, or was chargeable with, control or maintenance of the stairwell, or that it actually created the dangerous condition. Morgan v. Chong Kwan Jun, supra; Franks v. G & H Real Estate Holding Corp., supra; DePompo v. Waldbaums Supermarket, Inc., supra. And assuming arguendo, that the service agreement referenced by plaintiff and entered into between United and Airway Maintenance, a separate corporate entity not named in this action, somehow obligated Airway Cleaners as plaintiff suggests, the claims against Airway Cleaners would still fail.

In discussing the issue of whether a contractual obligation can be the predicate for tort liability to an injured third party, the Court of Appeals explained in Stiver v Good & Fair Carting & Moving, Inc., 9 N.Y.3d 253, 257 (2007), that:

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 N.Y.2d 136 (2002); see also Church v Callanan Indus., 99 N.Y.2d 104, 111 (2002)["(O)rdinarily, breach of a contractual obligation will not be sufficient in and of itself to impose tort liability to noncontracting third parties upon the promisor"]. We have identified only three exceptions to this general rule, which we summarized in Espinal. These are (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, "launches a force or instrument of harm" [quoting Moch Co., Inc. v Rensselaer Water Co., 247 N.Y. 160, 168 (1928)]; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties [citing Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 N.Y.2d 220, 226 (1990)] and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely [citing Palka v Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 589 (1994); Espinal, 98 N.Y.2d at 140; see also Church, 99 N.Y.2d at 112-113]. In this regard, "[a] contractor who creates or exacerbates a harmful condition may generally be said to have launched it" [McCord v Olympia & York Maiden Lane Co., 8 A.D.3d 634, 636 (2004), citing Espinal, 98 N.Y.2d at 142; accord Stiver v Good & Fair Carting & Moving 9 N.Y.3d 253, 257 (2007); Salvati v Professional Sec. Bur., 40 A.D.3d 735 (2007), lv denied 9 N.Y.3d 806 (2007)].

Airway has established, despite the fact that it was not a party to the service agreement and under no contractual duty or obligation, that none of the exceptions to the general rule exist here. In opposition, plaintiff again has failed to raise an issue of fact as to whether an exception to said general rule exists. Lastly, despite plaintiff's contention to the contrary, the service agreement at issue appears to be one for general janitorial services; repair of an allegedly defective step in a stairwell cannot be read into that contract. Thus, summary judgment in Airway's favor is warranted. Moreover, under the same reasoning, UAL the parent company of plaintiff's employer, United, is entitled to summary judgment as it owed no duty to plaintiff for the injuries allegedly sustained. See, Comack v. VBK Realty Associates, Ltd., 48 A.D.3d 611 (2^nd Dept. 2008); Casale v. Brookdale Medical Associates, 43 A.D.3d 418; Vetrone v. Ha Di Corp., 22 A.D.3d 835 (2^nd Dept. 2005); Nappi v. Incorporated Village of Lynbrook, 19 A.D.3d 565 (2^nd Dept. 2005).

With respect to that branch of the motion by United seeking dismissal on the ground that plaintiff did not sustain a grave injury, section 11 of the Workers' Compensation Law provides that an employer's liability prescribed by the Workers' Compensation Law shall be exclusive and in place of any other liability whatsoever. See, Stabile v. Viener, 291 A.D.2d 395 (2^nd Dept. 2002); Soto v. Alert No. 1 Alarm Systems, Inc., 272 A.D.2d 466 (2^nd Dept. 2000); Goodarzi v. City of New York, 217 A.D.2d 683 (2^nd Dept. 1995). The section further provides that an employer may be liable in a third-party action for contribution or indemnification only where the third-party plaintiff proves through competent medical evidence that the employee sustained a grave injury. See, Flores v. Lower East Side Service Center, Inc., 4 N.Y.3d 363 (2005); Meis v. ELO Org., 97 N.Y.2d 714 (2002); see, also, Spiegler v. Gerken Bldg. Corp., 35 A.D.3d 715, 715 (2^nd Dept. 2006); Angwin v. SRF Partnership, L.P., 285 A.D.2d 568 (2^nd Dept. 2001). "The term `grave injury' as contained in Workers' Compensation Law § 11 has been described as `a statutorily-defined threshold for catastrophic injuries, and it includes only those injuries listed in the statute and determined to be permanent' (citations omitted). Furthermore, the statutory list of grave injuries is intended to be exhaustive, not illustrative." Dunn v. Smithtown Bancorp, 286 A.D.2d 701, 702 (2^nd Dept. 2001); McCoy v. Queens Hydraulic...