McGrory-Buckley v. Delta Air Lines, Inc.

• Decision Date: 24 November 2021
• Docket Number: Index 713584 2019
• Citation: 2021 NY Slip Op 33127 (U)
• Parties: SHARON MCGRORY-BUCKLEY, ano Plaintiff(s), v. DELTA AIR LINES, INC., Defendant(s).
• Court: New York Supreme Court

2021 NY Slip Op 33127(U)

SHARON MCGRORY-BUCKLEY, ano Plaintiff(s), v. DELTA AIR LINES, INC., Defendant(s).

Index No. 713584 2019

Supreme Court, Queens County

November 24, 2021

Unpublished Opinion

Present: HONORABLE DAVID ELLIOT Justice.

The following papers were read on this motion by defendants seeking summary judgment dismissing plaintiffs' complaint, pursuant to CPLR 3212.

Papers Numbered

Notice of Motion - Affirmation - Exhibits ......................................... E27-E49

Answering Affirmation E52-E53

Reply Affirmation E55

Plaintiff Sharon McGrory-Buckley, seeks damages for personal injuries sustained when she was allegedly caused to lacerate her shin while boarding a shuttle bus, owned by defendant, Golden Touch Transportation of NY, Inc. (Golden Touch), after arriving on a Delta Air Lines flight, at LaGuardia Airport on January 16, 2019. Plaintiff alleges that her injury was caused by a defective step on the bus.

Defendant moves for summary judgment, dismissing plaintiff's complaint, on the ground that no triable issue of fact exists as to its liability for the accident, as defendant asserts there was no defective condition, and, if there was, it neither created the defective condition, nor did it have constructive notice of any such condition in time to have corrected it prior to the accident. Plaintiff opposes.

"[T]he 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" (Ayotte v Gervasio, 81 N.Y.2d 1062, 1063 [1993], citing Alvarez v Prospect Hospital, 68 N.Y.2d 320 [1986]; see Schmitt v Medford Kidney Center, 121 A.D.3d 1088 [2014]; Zapata v Buitriago, 107 A.D.3d 977 [2013]). Once a prima facie demonstration has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of a material issue of fact which requires a trial of the action (Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). On defendants' motion for summary judgment, the evidence should be liberally construed in a light most favorable to the non-moving plaintiffs (see Monroy v Lexington Operating Partners, LLC, 179 A.D.3d 1053 [2d Dept 2020]; Rivera v Town of Wappinger, 164 A.D.3d 932 [2d Dept 2018]: Boulos v Lerner-Harrington, 124 A.D.3d 709 [2d Dept 2015]). Credibility issues regarding the circumstances of the subject action requires resolution by the trier of fact (see Bravo v Vargas, 113 A.D.3d 579 [2d Dept 2014]; Martin v Cartledge, 102 A.D.3d 841 [2d Dept 2013]), and the denial of summary judgment.

The Court's function on a motion for summary judgment is "to determine whether material factual issues exist, not to resolve such issues" (Lopez v Beltre, 59 A.D.3d 683, 685 [2d Dept 2009]; Santiago v Joyce, 127 A.D.3d 954 [2d Dept 2015]). As summary judgment is to be considered the procedural equivalent of a trial, "it must clearly appear that no material and triable issue of fact is presented .... This drastic remedy should not be granted where there is any doubt as to the existence of such issues ... or where the issue is 'arguable' [citations omitted] (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]; see also, Rotuba Extruders v.Ceppos, 46 N.Y.2d 223 [1978]; Andre v. Pomeroy, 35 N.Y.2d 361 [1974]; Stukas v. Streiter, 83 A.D.3d 18 [2d Dept 2011]; Dykeman v. Heht, 52 A.D.3d 767 [2d Dept 2008]. Summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Collado v Jiacono, 126 A.D.3d 927 [2d Dept 2014]), citing Scott v Long Is. Power Auth., 294 A.D.2d 348, 348 [2d Dept 2002]; see Charlery v Allied Transit Corp., 163 AD3 914 [2d Dept 2018]; Chimbo v Bolivar, 142 A.D.3d 944 [2d Dept 2016]; Bravo v Vargas, 113 A.D.3d 579 [2d Dept 2014]).). The burden is on the party moving for summary judgment to demonstrate the absence of a material issue of fact. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966 [1988]; Winegrad v. New York Med. Ctr., 64 N.Y.2d 851 [1985]).

A defendant property owner who moves for summary judgment has the initial burden of establishing that it neither created the alleged hazardous, defective condition, nor had actual or constructive prior notice of its existence (Taliana v Hines REIT Three Huntington Quadrangle, LLC, 197 A.D.3d 1349, 1351 [2d Dept 2021]; Griffin v PMV Realty, LLC, 181 A.D.3d 912 [2d Dept 2020]; Steele v Samaritan Found., Inc., 176 A.D.3d 998 [2d Dept 2019]). Since "[a] finding of negligence may be based only upon the breach of a duty. If, in connection with the acts complained of, the defendant owes no duty, the action must fall" (Darby v Compagnie Nat'l. Air France, 96 N.Y.2d 343, 347 [2001]; see Plainview Props. SPE, LLC v County of Nassau, 181 A.D.3d 731 [2d Dept 2020]; Pinto v Walt Whitman Mall, LLC, 175 A.D.3d 541 [2d Dept 2019]; Federico v Defoe Corp., 138 A.D.3d 682 [2d Dept 2016]; Abrams v Bute, 138 A.D.3d 179 [2d Dept. 2016]). The existence of a duty is a threshold question of law for the court to determine (see Espinal v Melville Snow Contractors, 98 N.Y.2d 136 [2002]; Abbott v Johnson, 152 A.D.3d 730 [2d Dept 2017]).

Defendants contend that the submitted evidence established that no defect existed, and, therefore, no duty to plaintiff existed. Further, defendants contend that even if a defect did exist, they neither caused nor created the alleged defect, nor were they on actual or constructive notice of any alleged defect (see Kelly v Roy C. Ketcham High Sch., 179 A.D.3d 653 [2d Dept 2020]). While defendants can establish prima facie "entitlement to judgment as a matter of law by submitting evidence that no dangerous or defective condition existed" (Han Bin Hu v Bravo Food, Inc., 170 A.D.3d 818, 819 [2d Dept 2019]; see Fuentes v Theodore, 165 A.D.3d 560 [2d Dept 2018]), they have failed to do so, as they have failed to demonstrate "the absence of any material issues of fact" as to the accident having occurred on "Bus #8122."

The evidence propounded on that issue rested in large part on the unsworn Fixed Route Vehicular Incident/Accident Report, dated January 18, 2019, allegedly signed by Alassane Sow, the alleged employee/driver of the subject vehicle involved in this incident. Mr. Sow has not been presented for deposition, as defendants claim he has returned to Africa. The proffered Report does not contain his "employee number,' nor was it signed by any "safety manager or GM signature," as required by the Report. Further, according to the testimony of Derrick McCollum, an employee of Golden Touch, and "the account manager for their Delta contract," the Report was filled out by McCollum, pursuant to information gleaned from a telephone conversation with Dhanraj Ragbir, a Supervisor for Golden Touch, who was on the scene that day, and told McCollum what Sow allegedly told him. Without proof that Sow actually signed, and acknowledged the truth to the facts included in, such Report, it consists of inadmissible hearsay. This is especially so as Ragbir, at his deposition on December 23, 2020, testified that the first time he learned the number of the bus allegedly involved in the incident was at that deposition.

Similarly, defendants' expert opinions were based upon examinations of photographs of "Bus # 8122," which may not have been the bus involved in the accident. As this question of fact survives defendants' arguments, such expert opinions are unfounded at this time.

Plaintiff claims that she was injured when she was attempting to step onto the second step of the shuttle bus. Contrary to defendants' claim that they "met their prima facie entitlement to summary judgment with evidence that this (bus) was a single-step riser which, standing alone, is not hazardous as a matter of law," defendants have failed to offer any records, writings, or testimony that would evidence Sow's assignment to "Bus # 8122" on the subject date, or that the entire fleet of shuttle buses at Delta, on that date, were of the same model, and similarly designed and constructed as was "Bus # 8122." As such, defendants' "own submissions" demonstrate "that there are triable issues of fact" in this regard (Yao Zong Wu v Zhen Jia Yang, 161 A.D.3d 813, 814 [2d Dept 2018]; see Lozado v St. Patrick's RC Church, 174 A.D.3d 879 [2d Dept 2019]; Karwowski v Grolier Club of City of N.Y., 144 A.D.3d 865 [2d Dept 2016]), warranting denial of their motion for summary judgment.

Defendants also offer the Port Authority "Patron Accident or Property Damage Report" prepared by P. O. Anthony Espinal, a Port Authority employee, who responded to the scene of the incident. Officer Espinal was deposed...