Beck v. Port Authority of New York and New Jersey, 2008 NY Slip Op 33381 (N.Y. Sup. Ct. 12/12/2008)

• Decision Date: 12 December 2008
• Docket Number: Motion Cal. No: 6,Motion Seq. No: 4,15804/07
• Citation: 2008 NY Slip Op 33381
• Parties: DELORES BECK, Plaintiff, v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY AND DELTA AIR LINES, INC., Defendants.
• Court: New York Supreme Court

Page 1

2008 NY Slip Op 33381

DELORES BECK, Plaintiff, v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY AND DELTA AIR LINES, INC., Defendants.

Motion Cal. No: 6

Motion Seq. No: 4

15804/07

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

December 12, 2008.

Motion Date: October 8, 2008

Judge: PATRICIA P. SATTERFIELD

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

This is an action commenced by plaintiff Delores Beck ("plaintiff") against defendants Port Authority of New York and New Jersey ("Port Authority") and Delta Air Lines, Inc. ("Delta") to recover damages for personal injuries allegedly sustained as a result of a trip and fall on November 28, 2006, on a roadway leading from parking lot 5 to the Delta Air Lines Terminal at La Guardia Airport.¹ Delta now moves for summary judgment dismissing the complaint insofar as asserted against it on the grounds that plaintiff does not know what, if anything, caused her to fall, that there is no proof that Delta Airlines caused plaintiff to fall, and that any defects in the area of plaintiff's fall were trivial.

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.

"A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (citations omitted)." Gregg v. Key Food Supermarket, 50 A.D.3d 1093 (2^nd Dept. 2008); Sloane v. Costco Wholesale Corp., 49 A.D.3d 522 (2^nd Dept. 2008); Frazier v. City of New York, 47 A.D.3d 757 (2^nd Dept. 2008); Ulu v. ITT Sheraton Corp., 27 A.D.3d 554 (2^nd Dept. 2006); White v. L & M Corporate, Inc., 24 A.D.3d 659 (2^nd Dept.2005); Beltran v. Metropolitan Life Ins. Co., 259 A.D.2d 456 (2^nd Dept.1999). "Where there is no indication in the record that the defendant created the alleged dangerous condition or had actual notice of it, the plaintiff must proceed on the theory of constructive notice." Rabadi v. Atlantic & Pacific Tea Co., Inc., 268 A.D.2d 418, 419 (2^nd Dept. 2000); see, also, Ramos v. Castega-20 Vesey Street, LLC, 25 A.D.3d 773 (2^nd Dept. 2006); Klor v. American Airlines, 305 A.D.2d 550 (2^nd Dept. 2003); O'Callaghan v. Great Atlantic & Pacific Tea Co., 294 A.D.2d 416 (2^nd Dept. 2002). "To constitute constructive notice, a defect must be visible and apparent, and must exist for a sufficient length of time prior to the accident to permit the defendant's to discover and remedy it." Green v. City of New York, 34 A.D.3d 528, 529 (2^nd Dept. 2006); see, Stone v. Long Island Jewish Medical Center, Inc., 302 A.D.2d 376 (2^nd Dept. 2003); Blaszczyk v. Riccio, 266 A.D.2d 491 (2^nd Dept. 1999); Russo v. Eveco Development Corp., 256 A.D.2d 566 (2^nd Dept. 1998); Dima v. Breslin Realty, Inc., 240 A.D.2d 359 (2^nd Dept. 1997); Kraemer v. K-Mart Corp., 226 A.D.2d 590 (2^nd Dept.1996). Defendant's burden, however, cannot be satisfied merely by pointing to gaps in the plaintiff's case. See, Gregg v. Key Food Supermarket, supra; Stroppel v. Wal-Mart Stores, Inc., 53 A.D.3d 651 (2^nd Dept. 2008); DeFalco v. BJ's Wholesale Club, Inc., 38 A.D.3d 824, 825 (2^nd Dept. 2007). "Only after the defendant has satisfied its threshold burden will the court examine the sufficiency of the plaintiff's opposition (citations omitted)." Doherty v. Smithtown Cent. School Dist., 49 A.D.3d 801 (2^nd Dept. 2008); see, also, Gregg v. Key Food Supermarket, supra; Seabury v. County of Dutchess, 38 A.D.3d 752 (2^nd Dept. 2007); Yioves v. T.J. Maxx, Inc., 29 A.D.3d 572 (2^nd Dept. 2006).

Delta sought to meet its burden of establishing that it neither affirmatively created the defective condition that caused plaintiff's fall, or had actual or constructive notice of the condition and a reasonable time to correct it or warn of its existence [see, Todd v. City of New York, 19 A.D.3d 587 (2^nd Dept. 2005), citing, Mercer v. City of New York, 88 N.Y.2d 955, 956 (1996)], by submitting affidavits of its employees and deposition testimony. The most telling admission was contained in the affidavit of Anthony Cairo, Delta's employee who oversaw the facilities and concessions, in which he stated:

The general area in which plaintiff allegedly fell is within the area of Delta's leasehold. The area includes a gradual incline in the roadway and, further on, a crack in the asphalt. The crack was about a quarter of an inch wide. I know of no complaints regarding the incline or the crack. If the incline or the crack had needed to be repaired, Delta would have put it out to bid. There is lighting everywhere in the area.

This statement established that Delta had actual notice of a defect, notwithstanding plaintiff's equivocation as to whether she tripped on raised "cement" or "asphalt" or a "crack" in the inclination. Although a plaintiff's inability to identify the cause of his or her fall may be fatal to his or her cause of action [Guiterrez v. Iannacci, 43 A.D.3d 868 (2^nd Dept. 2008); Jackson v. Fenton, 38 A.D.3d 495 (2^nd Dept. 2007]; See, Bottiglieri v. Wheeler, 38 A.D.3d 818 (2^nd Dept. 2007); Rodriguez v. Cafaro, 17 A.D.3d 658 (2^nd Dept. 200); Grant v. L & J G Stickley, Inc., 20 A.D.3d 506 (2^nd Dept. 2005)], it does not absolve a defendant's burden on a motion for summary judgment of initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it or that the pathway was not in a defective condition. See, Gestetner v. Teitelbaum, 52 A.D.3d 778 (2^nd Dept. 2008); Gregg v. Key Food Supermarket, 50 A.D.3d 1093 (2^nd Dept. 2008); Sloane v. Costco Wholesale Corp., 49 A.D.3d 522 (2^nd Dept. 2008); Frazier v. City of New York, 47 A.D.3d 757 (2^nd Dept. 2008); Ulu v. ITT Sheraton Corp., 27 A.D.3d 554 (2^nd Dept. 2006); White v. L & M Corporate, Inc., 24 A.D.3d 659 (2^nd Dept.2005); Beltran v. Metropolitan Life Ins. Co., 259 A.D.2d 456 (2^nd Dept.1999). Here, the deposition testimony of plaintiff, as well as that of Anthony Cairo, together with the photographs of the area where plaintiff fell, not only sufficiently identify the defect that allegedly caused plaintiff's accident, but conclusively establish that Delta had notice of the defective condition. Thus, those branches of the motion seeking dismissal based upon lack of actual and constructive notice of the allegedly defective condition must be denied. Consequently, to prevail on this summary judgment motion, Delta must establish, as asserted, that the defect in the area of plaintiff's fall was trivial.

It is recognized that a property owner may not be held liable for "trivial defects, not constituting a trap or a nuisance over which a pedestrian might merely stumble stub his or her toes or trip." Ambroise v New York City Tr. Auth., 33 A.D.3d 573 (2^nd Dept. 2006); see, Taussig v Luxury Cars of Smithtown, 31 A.D.3d 533 (2^nd Dept. 2006). See, also, Ayala v. Gutin, 49 A.D.3d 677 (2^nd Dept.,2008); Pennella v. 277 Bronx River Road Owners, Inc., 309 A.D.2d 793 (2^nd Dept. 2003). Thus, notwithstanding the duty to maintain its premises in a reasonably safe manner, a property owner "has no duty to protect or warn against an open and obvious condition, which, as a matter of law, is not inherently dangerous (citations omitted)." Gagliardi v. Walmart Stores, Inc., 52 A.D.3d 777 (2^nd Dept. 2008); Rao-Boyle v. Alperstein, 44 A.D.3d 1022 (2^nd Dept. 2007); Errett v Great Neck Park Dist., 40 A.D.3d 1029 (2 nd Dept. 2007); Morgan v. TJX Companies, Inc., 38 A.D.3d 508 (2^nd Dept. 2007); Sclafani v. Washington Mut., 36 A.D.3d 682 (2^nd Dept. 2007). Ramsey v. Mt. Vernon Board. of Education, 32 A.D.3d 1007 (2^nd Dept. 2006); Zimkind v Costco Wholesale Corp., 12 A.D.3d 593 (2^nd Dept. 2004); Cupo v. Karfunkel, 1 A.D.3d 48 (2^nd Dept. 2003). "Of course, in some instances, the trivial nature of the defect may loom larger than another element. Not every injury allegedly caused by an elevated brick or slab need be submitted to a jury (citations omitted). However, a mechanistic disposition of case based exclusively on the dimension of the sidewalk defect is unacceptable." Trincere v. County of Suffolk, 90 N.Y.2d 976, 977-978 (1997); see also, Ayala v. Gutin, 49 A.D.3d 677 (2^nd Dept. 2008); Outlaw v. Citibank, N.A., 35 A.D.3d 564 (2^nd Dept. 2006); Taussig v. Luxury Cars of Smithtown, Inc., 31 A.D.3d 533 (2^nd Dept. 2006). There is no "'minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable (Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489)." Boxer v. Metropolitan Transp. Authority, 52 A.D.3d 447 (2^nd Dept. 2008); Hahn v. Wilhelm, 54 A.D.3d 896 (2^nd Dept. 2008). "In determining whether a defect is trivial, the court must examine all 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...