Opinion
15237/09
02-03-2012
Janet Alicea, Plaintiff, v. Jetblue Airways Corporation and THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, JETBLUE AIRWAYS CORPORATION and THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Third-Party Plaintiffs, OXFORD ELECTRONICS, INC. d/b/a OXFORD AIRPORT TECHNICAL SERVICES, INC., Third-Party, Defendant.
, J.
The following papers numbered 1 to18read on this motion by defendants/third-party plaintiffs Jetblue Airways Corporation and The Port Authority of New York and New Jersey (collectively referred to as defendants), for summary judgment dismissing plaintiff's complaint; and by separate notice of motion by third-party defendant Oxford Electronics, Inc., doing business as, Oxford Airport Technical Services, Inc. (Oxford), for summary judgment dismissing the third-party complaint.
Papers Numbered
Notices of Motion - Affidavits - Exhibits1 - 10
Answering Affidavits - Exhibits11 - 16
Reply Affidavits17 - 18
Upon the foregoing papers it is ordered that the motions are determined as follows:
This is an action to recover for personal injuries plaintiff Janet Alicea (plaintiff) allegedly sustained on July 10, 2008, when she lost her balance on a jetbridge at John F. Kennedy International Airport (JFK Airport). Plaintiff has alleged that she was deplaning a flight from San Juan, Puerto Rico, which was operated by defendant/third-party plaintiff Jetblue Airways Corporation (Jetblue), when she fell on a hazardous condition on the floor of a jetbridge connecting the airplane to the terminal. Jetblue operates flights between JFK Airport and San Juan, Puerto Rico. Defendant/third-party plaintiff The Port Authority of New York and New Jersey (The Port Authority) has a long-term agreement to lease JFK Airport from nonparty The City of New York. The Port Authority operated and maintained those portions of the premises that were not maintained by others and it had an agreement with Jetblue, wherein, it subleased certain portions of the premises to Jetblue, including the area in which plaintiff allegedly fell. Jetblue, in turn, had an agreement with Oxford, in which Oxford agreed to perform certain services at JFK Airport for Jetblue, including safety checks on equipment, maintenance, and to report unsafe conditions to Jetblue personnel. Defendants have commenced a third-party action against Oxford for indemnity and contribution.
Defendants have moved for summary judgment dismissing the complaint and have argued that The Port Authority was an out-of-possession landlord which owed no duty to plaintiff. On their motion, defendants 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" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]). They have relied upon, among other things, a copy of a lease agreement between The Port Authority and Jetblue.
"An out-of-possession landlord owes no duty to maintain and make repairs upon demised property unless he retains control over the property or is contractually obligated to perform such maintenance and repairs" (D'Orlando v Port Auth. of NY & NJ, 250 AD2d 805 [1998]; see Panico v Jiffy Lube Intl., Inc., 86 AD3d 553 [2011]; Stark v Port Auth. of NY & N.J., 224 AD2d 681, 682 [1996]). While "the duty to maintain and repair may be imposed upon the landlord by statute ... [i]t is well established that there is no statute imposing a duty on the Port Authority ... to maintain and repair the various terminals that it leases to individual airlines at [JFK] Airport" (D'Orlando v Port Auth. of NY & NJ, 250 AD2d at 805).
The lease between The Port Authority and Jetblue provides, in pertinent part, that Jetblue "shall, throughout the term of this Lease, assume the entire responsibility and shall relieve the Port Authority from all responsibility for all repair, rebuilding and maintenance whatsoever in the Premises, and the Non-Premises Portion of the Terminal ... whether such repair, rebuilding, or maintenance be ordinary or extraordinary, partial or entire, inside or outside, foreseen or unforeseen, structural or otherwise, and... [keep] at all times in a clean and orderly condition and appearance, the Terminal ... which is open to or visible by the general public." It further provides that Jetblue shall "[t]ake good care of the [p]remises and ... maintain the same at all times in good condition; [and] perform all necessary preventative maintenance." In light of this evidence, The Port Authority has satisfied its prima facie burden of establishing that it was an out-of-possession lessor that did not retain control of the premises and was not contractually obligated to maintain or repair the premises (see Panico v Jiffy Lube Intl., Inc., 86 AD3d at 553; He Shang Wang v 82-90 Broadway Realty Corp., 82 AD3d 1158, 1159 [2011]). In opposition, plaintiff has failed to raise a triable issue of fact (see Panico v Jiffy Lube Intl., Inc., 86 AD3d at 553). Therefore, The Port Authority is entitled to dismissal of the complaint.
Turning next to Jetblue's arguments as to its liability, it has argued that there is no evidence that a dangerous condition existed, that it did not create the alleged condition or have actual or constructive notice of it, and that plaintiff failed to state what caused her to fall. Jetblue has "the burden of establishing, prima facie, that it neither created the alleged hazardous condition nor had actual or constructive notice of its existence" (Goodyear v Putnam/Northern Westchester Bd. of Coop. Educ. Servs., 86 AD3d 551, 552 [2011]; see Melnikov v 249 Brighton Corp., 72 AD3d 760 [2010]; Samuels v Chap A Nosh of Cedarhurst, Inc., 62 AD3d 857, 858 [2009]). "A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a length of time sufficient to afford the defendant a reasonable opportunity to discover and remedy it" (Goodyear v Putnam/Northern Westchester Bd. of Coop. Educ. Servs., 86 AD3d at 552; see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). "To meet its initial burden on the issue of lack of constructive notice, [Jetblue] must offer some evidence as to when the area in question was last ... inspected relative to the time when the plaintiff fell" (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598—599 [2008]; see Goodyear v Putnam/Northern Westchester Bd. of Coop. Educ. Servs., 86 AD3d at 552; Schiano v Mijul, Inc., 79 AD3d 726, 726—727 [2010]). Jetblue must do more than merely point to the gaps in plaintiff's case (see Davranov v 470 Realty Assoc., LLC, 79 AD3d 697, 697-698 [2010]; Falah v Stop & Shop Cos., Inc., 41 AD3d 638, 639 [2007]).
Jetblue has relied upon, among other things, plaintiff's deposition testimony, the testimony of Xavier Thomas (Thomas) an employee of Jetblue, the testimony of Tom Giles (Giles) an employee of Oxford, and the affidavit of Donald Killoch, Jr. (Killoch), a Jetblue employee. Plaintiff testified that when she had deplaned and walked approximately 15 feet onto the jetbridge, she fell on a raised area of the floor of the jetbridge, that she described as looking like a "small ramp." She further testified that there was a one to two-inch height differential in the floor and that she only noticed the alleged condition after her fall.
In his affidavit, Killoch, an Analyst in the Safety Department for Jetblue, stated that after a search of Jetblue's records, Jetblue was not in possession of any documents related to a defect in the particular jetbridge for approximately two years prior to the date of the incident. However, Thomas testified that he was the customer service lead for Jetblue, that while he did not receive any complaints or notice of any incidents prior to plaintiff's accident, Jetblue did not keep records of any complaints and he was not aware of whether Jetblue followed up on any complaints it may have received. He further testified that he did not inspect the jetbridge after the incident and did not know what caused plaintiff's fall. Under these circumstances, Jetblue has failed to conclusively establish that it did not have actual notice of the alleged condition because it is unclear whether it received or addressed any complaints with regard to the jetbridge and/or the alleged condition prior to plaintiff's fall (see e.g. Bridges v Wyandanch Community Dev. Corp., 66 AD3d 938, 940 [2009]; Seabury v County of Dutchess, 38 AD3d 752, 753 [2007]).
Giles testified that he was the vice president of operations for Oxford and that, while Oxford's records indicated that a preventative maintenance inspection was performed on the jetbridge the day before plaintiff's fall, the report of the inspection was missing information and that he did not know if the inspection was completed on the date indicated. The inspection reports are a part of the record, and the court's examination of them has revealed that they are incomplete as to the inspection which was allegedly performed the day before plaintiff's fall. In light of this evidence, Jetblue has failed to demonstrate that it lacked constructive notice of the alleged condition by conclusively showing that there was no dangerous condition observed at the time a preventative maintenance inspection was performed on the day before plaintiff's fall (c.f. Smith v Costco Wholesale Corp., 50 AD3d 499, 500 [2008]; Davis v Golub Corp., 286 AD2d 821 [2001]).
Furthermore, while it is unclear from plaintiff's non-specific testimony what actually caused her to fall because she testified to the alleged condition being a small ramp, a raised portion and a height differential, Jetblue has failed to demonstrate that there was no inherently dangerous defect on the floor of the jetbridge. Therefore, Jetblue has failed to satisfy its prima facie burden on its motion and the opposition papers need not be considered (see Alvarez v Prospect Hosp., 68 NY2d at 324).
Oxford has moved for summary judgment dismissing the third-party complaint. In support of its motion, Oxford has relied upon, among other things, a copy of its agreement with Jetblue and copies of Oxford's work order reports dated between May 2008 and July 2008. Initially, in light of the above determination dismissing plaintiff's complaint against The Port Authority in the underlying action, The Port Authority's claims in the third-party complaint fall, and Oxford is entitled to the dismissal of those claims.
With regard to Jetblue's third-party claim for common-law indemnification and contribution, in general, "[s]ummary judgment on a claim for common-law indemnification is appropriate only where there are no triable issues of fact concerning the degree of fault attributable to each party involved" (Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616, 620 [2008]; Coque v Wildflower Estates Developers, Inc., 31 AD3d 484, 489 [2006]). Since issues of fact remain in the instant matter, at least, as to how plaintiff's fall occurred and as to the relative liability of Jetblue and Oxford, a determination on the branch of Oxford's motion to dismiss this claim would be premature (see Gil v Manufacturers Hanover Trust Co., 39 AD3d 703, 705 [2007]; Watters v R.D. Branch Assoc., LP, 30 AD3d 408, 409-410 [2006]).
As to Jetblue's third-party claim against Oxford for contractual indemnification, Oxford has argued that it is not required to indemnify Jetblue under the terms of the agreement because plaintiff's fall did not arise out of its negligent performance of the agreement and that it satisfied its obligations under the agreement. In opposition, Jetblue has argued that Oxford's negligence is not a pre-requisite under the indemnification clause because the language of the agreement requires Oxford to indemnify it for all claims arising out of the performance of the agreement, not just those claims where Oxford was negligent.
"A party is entitled to full contractual indemnification for damages incurred in a personal injury suit provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances" (Masciotta v Morse Diesel Intl., 303 AD2d 309, 310 [2003][internal quotes and citations omitted]; see Roldan v New York Univ., 81 AD3d 625, 628 [2011]; Kennelty v Darlind Constr., 260 AD2d 443, 446 [1999]).
It is undisputed that Oxford assumed a duty as to the subject jetbridge, pursuant to its agreement with Jetblue. The indemnification clause in the instant matter provides that Oxford "shall at all times indemnify and hold harmless [Jetblue] from and against any and all claims, liability, loss, cost or expense of whatever kind or nature ... arising out of or attributable to the performance of [the] [a]greement." The clause is stated in broad terms which do not condition Oxford's liability to indemnify Jetblue on negligence (see e.g. Ulrich v Motor Parkway Props., LLC, 84 AD3d 1221, 1224 [2011]; Keena v Gucci Shops, 300 AD2d 82 [2002]; cf. Moss v McDonald's Corp., 34 AD3d 656, 657 [2006]). If the parties had intended that Oxford's negligence be a condition for the indemnification clause, they had only to set that forth, in unambiguous language. Instead, based upon this court's reading of the broad terms of the instant agreement, Oxford may be required to indemnify Jetblue for all claims arising out of or attributable to the performance of the agreement (see Brown v Two Exch. Plaza Partners, 76 NY2d 172, 178 [1990]; see e.g. Ulrich v Motor Parkway Props., LLC, 84 AD3d at 1224; Torres v Morse Diesel Intl., Inc., 14 AD3d 401, 403 [2005]). However, based upon the papers presented and plaintiff's non-specific and vague testimony, it remains unclear what caused the accident. Oxford, as the movant herein, has failed to conclusively demonstrate that the accident did not arise out of, or was not attributable to, the performance of the agreement and, thus, it is not entitled to dismissal of the third-party claim for contractual indemnification (see e.g. Trzaska v Allied Frozen Stor., Inc., 77 AD3d 1291, 1292-1293 [2010]; cf. Roldan v New York Univ., 81 AD3d at 628).
Accordingly, defendants' motion for summary judgment dismissing plaintiff's complaint is granted only to the extent that the complaint is dismissed against The Port Authority, and it is denied in all other respects. Oxford's motion for summary judgment dismissing the third-party complaint is granted to the extent that The Port Authority's third-party claims are dismissed, and its motion is denied in all other respects.
Dated: Long Island City, NY
February 3, 2012
______________________________
ROBERT J. McDONALD
J.S.C.