Aarons v. Port Auth. of N.Y. & N.J.

2024 NY Slip Op 33554(U)

• Court: New York Supreme Court, New York County
• Decided: October 7, 2024
• Docket: Index No. 160456/2019
• Status: Unpublished

Opinion

Aarons v Port Auth. of N.Y. & N.J. 2024 NY Slip Op 33554(U) October 7, 2024 Supreme Court, New York County Docket Number: Index No. 160456/2019 Judge: Paul A. Goetz Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 160456/2019 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 10/07/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 160456/2019 DAVID AARONS, MOTION DATE 03/12/2024 Plaintiff, MOTION SEQ. NO. 001 - V -

THE PORT AUTHORITY OF NEW YORK AND NEW DECISION + ORDER ON JERSEY, AMERICAN AIRLINES, INC. MOTION Defendant. ------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 40, 41, 42, 43, 44, 45,46,47,48,49,50,51,52,53,54,55,56,57,58,59,60, 61, 62,63, 64,65, 66,67 were read on this motion to/for DISMISS

In this action involving luggage that fell onto plaintiff while he was on an escalator at

John F. Kennedy International Airport (JFK), defendants The Port Authority of New York and

New Jersey (Port Authority) and American Airlines Inc. (American Airlines) move pursuant to

CPLR § 3212 for summary judgment dismissing plaintiff's complaint.

BACKGROUND

Port Authority operates JFK, a part of which is leased to American Airlines (NYSCEF

Doc No 52). Plaintiff began working as a manager at Mar Air Foods, a food provider located in

the American Airlines terminal, in 2008 (NYSCEF Doc No 47, 10:7-11:8). On November 1,

2018, around 2.5 hours into his shift, plaintiff took an escalator within the American Airlines

terminal to reach a lower level (id., 36:21-39: 13). When he was part-way down to the next floor,

he heard a loud noise behind him; he turned around and saw a woman at the top of the escalator

"and there was her luggage flying at [plaintiff]" (id., 39: 14-41 :5). Plaintiff reflexively grabbed

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onto the left-side railing and attempted to jump over the luggage but he "didn't stay up long

enough ... and it took [his] right leg out and pulled [him] forward," causing plaintiff to fall

"around[] 15 steps" (id., 41:10-42:19). Plaintiff fell on his back and bottom, and sustained

injuries to his right ankle (id., 42:20-43: 16, 46: 15-17).

At the time of this incident, there were no American Airlines employees stationed nearby,

however, there was a warning sign at the top of the escalator reading: "NO LUGGAGE/ please

use elevator" (NYSCEF Doc No 51 ). This sign, and copies of it, were placed at the top of all the

terminal's escalators by American Airlines employees (NYSCEF Doc No 49, 23:20-16) since the

opening of the terminal in 2005 (NYSCEF Doc No 62, 21:23-5). American Airlines director of

customer care Robert Nygard testified that there was not necessarily a rule against carrying

luggage on the escalator, but that it is "safe common practice to use the elevator if you're

carrying luggage" (NYSCEF Doc No 63, 22:6-19).

Port Authority senior property representative Kenneth Goldsman, American Airlines

regulatory compliance coordinator Frances Butts-Jeffery, and Nygard testified that they were

unaware of any complaints that may have prompted the placement of the warning signs, or of

any other issues with falling luggage (NYCEF Doc Nos 48, 40:6-17; 49, 30: 19-31:4; 63, 23:2-

24:6). However, there were two incident reports pre-dating plaintiffs accident in which a

passenger was struck from behind by luggage that fell down the escalator (NYSCEF Doc No 62

[incidents dated June 17, 2017 and July 30, 2018]) and plaintiff testified that he had seen luggage

tumble down the escalator "close to half a dozen times[] in the ten years" of his employment

(NYSCEF Doc No 47, 51: 13-25). Additionally, plaintiffs expert witness James Pugh stated that

during his inspection of the premises, he "observed many passengers using the escalators

accompanied by luggage" (NYSCEF Doc No 64 ,i 4).

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DISCUSSION

"It is well settled that 'the 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."' (Pullman v Silverman, 28 NY3d 1060,

1062 [2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]). "Failure to make

such showing requires denial of the motion, regardless of the sufficiency of the opposing

papers." (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] [internal citations

omitted]). "Once such a prima facie showing has been made, the burden shifts to the party

opposing the motion to produce evidentiary proof in admissible form sufficient to raise material

issues of fact which require a trial of the action." ( Cabrera v Rodriguez, 72 AD3d 553, 553-554

[!81 Dept 2010], citing Alvarez, 68 NY2d at 342). "The court's function on a motion for summary

judgment is merely to determine if any triable issues exist, not to determine the merits of any

such issues or to assess credibility." (Meridian Mgmt. Corp. v Cristi Cleaning Serv. Corp., 70

AD3d 508, 510-511 [1 st Dept 201 O] [internal citations omitted]). If there is any doubt as to the

existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v

Ceppos, 46 NY2d 223, 231 [ 1978]).

Defendants argue that plaintiffs negligence claim should be dismissed because they did

not have a duty to supervise and prevent other passengers within the terminal from bringing

luggage onto the escalator, and they cannot be held liable for the acts of a third party (NYSCEF

Doc No 41). Plaintiff argues that defendants, as owners/operators and lessees, have a duty of care

to those on their premises; they had constructive notice that passengers were not following the

advisory against carrying luggage on escalators; and they failed to take additional measures to

ensure compliance with that advisory (NYSCEF Doc No 56). Specifically, plaintiff asserts that

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"[t]here should have been a live person to enforce a no baggage rule" (id.). Defendants respond

that this proposal is unrealistic and unduly burdensome, as there are 10 escalators in this terminal

which runs 24 hours a day and strictly mandating that all passengers with luggage use the

elevator would cause crowding and delays (NYSCEF Doc No 65).

"Landowners in general have a duty to act in a reasonable manner to prevent harm to

those on their property" (D 'Amico v Christie, 71 NY2d 76, 85 [1987]). This includes "a duty to

control the conduct of third persons on their premises when they have the opportunity to control

such persons and are reasonably aware of the need for such control" (id.). However, "it is

unreasonable to impose that duty where the realities of every day experience show us that,

regardless of the measures taken, there is little expectation that the one made responsible could

prevent the negligent conduct" (Pulka v Edelman, 40 NY2d 781, 785 [1976]). A landowner "is

not liable for every thoughtless or careless act by which one [person] may injury another[, nor] is

liability invariably to fall on it because a [] rule has been violated and an injury has been caused"

(Lawes v Board ofEducation, 16 NY2d 302,306 [1965]).

Here, "[t]here is no question that [defendants], as[] owner [and] occupier of the

premises, owed a duty to take reasonable steps in maintaining the safety of its [escalators] ...

and take reasonable care against the foreseeable, injurious actions of third parties on airline

premises" (Stag! v Delta Airlines, 52 F3d 463, 467-68 [2 nd Cir 1995]). However, plaintiff failed

to demonstrate that defendants "acted unreasonably in [their] monitoring and controlling

procedures" ( Gross v American Airlines, Inc., 755 F Supp 89, 90-91 [SDNY 1991] [finding it

"unreasonable [] to impose a duty on American to post signs warning passengers to watch out for

[poor] placement of luggage by[] other passengers nearby"]). American Airlines posted warning

signs at the entrance of every escalator in its terminal; it would be impractical and unduly

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burdensome to instead have employees stationed at each of these locations to enforce its policy

against carrying luggage while on the escalators (id. ["it would be impractical, if not impossible,

for American to devise a means of preventing an individual from stumbling, whether over a bag

or otherwise, in this constantly in-flux situation"]; Lawes, 16 NY2d at 305-06 [it would be "an

undue burden[] to impose a liability because [an employee] did not stand [nearby] for active

intervention in the circumstances shown by [the] record"]). Moreover, "plaintiff failed to raise a

triable issue of fact as to whether he had relied on that policy," as plaintiff testified that he had

seen luggage tumble down the escalators several times throughout his employment (Safa v Bay

Ridge Auto, 84 AD3d 1344, 1346 [2 nd Dept 2011] [finding auto shop not liable for accident

caused by a customer while driving his own vehicle out of the garage in violation of the auto

shop's policy]; Boehme v A.P.P.L.E., 298 AD2d 540, 541 [2 nd Dept 2002] ["there is no basis for

the proposition that a party may be liable for failing to follow a policy which it has adopted

voluntarily, and without legal obligation, especially when there is no showing of detrimental

reliance by the plaintiff on the defendant following that policy"]).

Accordingly, defendants' motion for summary judgment will be granted and Port

Authority's argument that it was an out-of-possession landlord need not and will not be

addressed.

CONCLUSION

Based on the foregoing, it is

ORDERED that defendants' motion is granted and plaintiffs complaint is dismissed; and

it is further

ORDERED that the clerk is directed to enter judgment in favor of defendants with costs

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and disbursements as taxed by the clerk.

10/7/2024 DATE PAUL A. GOETZ, J.S.C.

~ ~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

□ DENIED □ GRANTED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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