Biscone v. Jetblue Airways Corp.
| Citation | 103 A.D.3d 158,957 N.Y.S.2d 361,2012 N.Y. Slip Op. 09019 |
| Parties | Katharine BISCONE, etc., appellant, v. JETBLUE AIRWAYS CORPORATION, respondent, et al., defendants. |
| Decision Date | 26 December 2012 |
| Court | New York Supreme Court Appellate Division |
OPINION TEXT STARTS HERE
Paul S. Hudson, Valatie, N.Y., for appellant.
Holland & Knight LLP, New York, N.Y. (Christopher G. Kelly, Judith Nemsick, and Christine Tramontano of counsel), for respondent.
MARK C. DILLON, J.P., ANITA R. FLORIO, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.
On this appeal, we address whether intentional tort and fraud claims to recover damages allegedly resulting from the confinement of commercial airline passengers in an airplane remaining on a tarmac outside of a terminal for several hours without affording passengers food, water, clean air, and toilet facilities is preempted by federal law. We also determine whether, in an electronically filed (hereinafter e-filed) action, the failure to annex a complete set of the originally submitted papers in support of a motion for leave to renew or reargue a motion for class certification warrants denial of the motion.
For the reasons that follow, we find that the plaintiff's intentional tort and fraud claims relate to the provision of airline services and are, therefore, preempted by federal law. We further find that compliance with CPLR 2214(c) requires that a party seeking leave to renew or reargue cannot rely upon reference to e-filed documents in lieu of annexing a complete set of the originally submitted motion papers.
The plaintiff commenced this putative class action by filing a summons with notice in the Supreme Court, Queens County, on February 13, 2008, against, among others, the defendant JetBlue Airways Corporation (hereinafter JetBlue). According to the plaintiff's summons with notice, the nature of the putative class action was one to recover damages for, among other things, false imprisonment, negligence, intentional infliction of emotional distress, fraud and deceit, and breach of contract arising out of an 11–hour confinement of the plaintiff and other passengers in a JetBlue aircraft on the tarmac at John F. Kennedy International Airport (hereinafter JFK) on February 14, 2007.
After it was served with a copy of the complaint on July 15, 2009, JetBlue filed a notice of removal pursuant to 28 USC § 1441 in the United States District Court for the Eastern District of New York (hereinafter the federal court) to remove this case on the basis that the federal court had original jurisdiction over the claims of certain putative class members arising out of the Montreal Convention , as asserted in the complaint. The plaintiff moved in the federal court pursuant to 28 USC § 1447(c) to remand this action to the Supreme Court, Queens County. In an order dated February 4, 2010, the federal court granted the motion, concluding that it did not have jurisdiction to hear this case since the plaintiff lacked standing to raise Montreal Convention claims.
After this action was remanded to the Supreme Court, Queens County, JetBlue moved, by notice of motion dated April 19, 2010, pursuant to CPLR 3211(a)(1) and (7), to dismiss the complaint. JetBlue asserted that the plaintiff's tort claims were preempted by the Airline Deregulation Act of 1978 (49 USC § 41713) (hereinafter the ADA) and the Federal Aviation Act of 1958 (49 USC 40101 et seq.) (hereinafter the FAA), and that the plaintiff failed to state a cause of action with respect to all five of her claims.
In opposition, the plaintiff submitted, inter alia, a first amended complaint dated April 30, 2010, which differed from the original complaint in that the plaintiff added some factual allegations with respect to the events that occurred on the subject day of travel and concerning the cause of action alleging breach of contract, included an allegation of negligence per se, and deleted any reference to the Montreal Convention.
As directed by the Supreme Court, JetBlue filed a subsequent motion to dismiss the first amended complaint on May 21, 2010, reiterating the same grounds for dismissal as were asserted in its original motion: federal preemption of the tort claims under the ADA and the FAA, and failure to state a cause of action with respect to all claims. At about the same time, by notice of motion dated May 20, 2010, the plaintiff moved for class action certification pursuant to CPLR article 9.
In her first amended complaint, the plaintiff made the following allegations. At 6:15 A.M. on February 14, 2007, she boarded a JetBlue aircraft at JFK that was scheduled to depart for Burbank, California, at 6:45 A.M. The aircraft left the terminal at approximately 6:50 A.M., but remained on the ground for the ensuing 11–hour period until the plaintiff was allowed to exit the aircraft at 5:30 P.M. During the first 5 hours, the plaintiff remained in her seat with her seat belt fastened, as instructed by JetBlue personnel, who stated that the weather was “holding us up” and that it was necessary to remain seated so that the aircraft could take off on 5 minutes' notice. After 5 hours, JetBlue personnel told passengers that if they wanted to exit the plane and take another flight, they should inform a crew member.
The plaintiff claimed that a nearby passenger requested to exit, but “the flight attendant bullied and intimidated him to stay on the plane,” stating that JetBlue would not assist him with getting another flight and that, in any event, no other flights were available for several days. According to the plaintiff, other passengers demanded to be released from the plane, but JetBlue personnel refused and stated “that if anyone tried to force their way off the aircraft, they would go to prison for 20 years” pursuant to the Federal Patriot Act. The plaintiff asserted that she was “intimidated” and “deceived” by JetBlue personnel's “false and deceptive statements regarding alternative transportation,” and that JetBlue was aware, or should have been aware, that other flights on other airlines were available within 80 miles of JFK.
During the confinement, the JetBlue flight crew only served “very small amounts of water” and a few snacks after 3 hours had passed, and then again after a period of 8 hours. In addition, after 8 hours, the heating, cooling, and ventilation system “shut down,” causing the air to become “sweltering” and making it difficult for passengers to breathe. After 10 hours, the captain informed passengers that the toilet tanks were full and they could not “do a No. 2” because the tanks would overflow.
The plaintiff also alleged that numerous times during the confinement, JetBlue personnel falsely asserted that the plane was “next in line” to return to the terminal and would do so soon, while the plaintiff observed numerous other planes return to the terminal throughout the 11–hour period. Finally, after 11 hours, buses arrived and took the passengers to the terminal, where they waited another 2 hours to obtain their baggage. Approximately 1,300 other passengers on JetBlue aircraft were similarly affected by JetBlue's actions at JFK that day.
As a result of the incident, the plaintiff, a comedy writer working in television and film, allegedly missed her friend's film premiere and “important” business meetings, sustaining “lost business opportunities.” Moreover, she asserted that she had undergone “major shoulder surgery” six months before the incident, and that “her shoulder and hip flexors started to ache,” “her legs began cramping,” and she “suffered from mental distress, anxiety and near panic” after 4 to 5 hours of confinement. The plaintiff also averred that she “suffered physical pain for six months afterwards as well as panic and anxiety attacks,” which required treatment and therapy.
In her amended complaint, the plaintiff asserted five causes of action, which alleged false imprisonment, negligence and negligence per se, intentional infliction of emotional distress, fraud and deceit, and breach of contract, respectively.
In an order entered October 12, 2010, the Supreme Court granted certain branches of JetBlue's motion to dismiss the amended complaint, while denying others. First, the court addressed the express preemption provision of the ADA, which, the court stated, “does not apply to tort claims for personal injury, ... but ... does apply to other types of tort claims merely pertaining to the service provided by an airline,” such as fraud, intentional infliction of emotional distress, and false imprisonment (citations omitted). The court concluded that “all of the plaintiff's tort claims, with the exception of negligence causing physical injury, are closely related to the provision of services” by an airline:
Accordingly, the court granted those branches of JetBlue's motion which were to dismiss, as preempted, the causes of action alleging false imprisonment, intentional infliction of emotional distress, and fraud and deceit, and so much of the cause of action alleging negligence as was not predicated on personal injury, and denied those branches of the motion which were to dismiss, on preemption grounds, so...
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