Latorres v. Delta Air Lines, Inc.

• Decision Date: 24 August 2022
• Docket Number: 2020–04907,Index No. 707493/16
• Parties: Maria LATORRES, respondent, v. DELTA AIR LINES, INC., appellant.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 770

172 N.Y.S.3d 645 (Mem)

Maria LATORRES, respondent,

v.DELTA AIR LINES, INC., appellant.

2020–04907

Index No. 707493/16

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 2, 2022

August 24, 2022

Fisher Broyles, LLP, New York, NY (John R. Oh of counsel), for appellant.

Joseph Vozza, Mamaroneck, NY, for respondent.

COLLEEN D. DUFFY, J.P., BETSY BARROS, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), dated May 20, 2020. The order denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On the morning of July 18, 2015, the plaintiff allegedly sustained injuries at her place of employment at the JFK Airport in Queens. At the time of the accident, the plaintiff was employed by the defendant's cleaning service contractor to clean airplanes. To access the defendant's airplane at issue, the plaintiff had to use a nonmotorized tow staircase (hereinafter NMTS). As the plaintiff ascended the staircase, she noticed, inter alia, that this exterior staircase was unstable and shaking. Approximately 30 minutes later, as she was descending the NMTS, it was still shaking. The plaintiff alleged that the violent movement of the NMTS caused her to fall.

The plaintiff commenced this personal injury action against the defendant. The defendant moved for summary judgment dismissing the complaint. The plaintiff opposed the motion, contending, inter alia, that the defendant created the unstable condition of the NMTS or had actual or constructive notice of the unstable condition. The plaintiff also argued that the doctrine of res ipsa loquitur applied. In an order dated May 20, 2020, the Supreme Court denied the motion. The defendant appeals.

In a premises liability case, a defendant property owner or occupant who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence (see Dougherty v. 359 Lewis Ave. Assoc., LLC, 191 A.D.3d 763, 142 N.Y.S.3d 92 ; Bennett v. Alleyne, 163 A.D.3d 754, 755, 81 N.Y.S.3d 504 ; Gebert v. Catalano, 110 A.D.3d 951, 973 N.Y.S.2d 332 ). Here, viewing the evidence in the light most favorable to the nonmoving plaintiff (see Stukas v. Streiter, 83 A.D.3d 18, 22, 918 N.Y.S.2d 176 ), the defendant failed to establish, prima facie, that it did not create the unstable condition of the NMTS by negligently setting it up, or that it did not have actual or constructive notice of the alleged unstable condition (see generally Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; Klerman v....