Opinion
805312/2018
08-28-2020
Gina DUFFY and Joseph Duffy, Plaintiffs, v. NIAGARA FRONTIER TRANSPORTATION AUTHORITY, Buffalo Niagara International Airport, and JetBlue Airways Corporation, Defendants.
GRUENBERG KELLY DELLA, Michael Della, Esq., Of Counsel, Zachary M. Beriloff, Esq., Of Counsel, Attorneys for Plaintiffs OFFICE OF GENERAL COUNSEL, NIAGARA FRONTIER TRANSPORTATION AUTHORITY AND NIAGARA FRONTIER TRANSIT METRO, INC., John P. DePaolo, Esq., Of Counsel, Attorneys for Defendants, Niagara Frontier Transportation Authority and Buffalo Niagara International Airport McCARTER & ENGLISH, LLP, Irene M. Hurtado, Esq., Of Counsel, Attorneys for Defendant, JetBlue Airways Corporation RIGBY SLACK, ET AL PLLC, Patrick J. Comerford, Esq., Of Counsel, Co-Counsel for Defendant JetBlue Airways Corporation
GRUENBERG KELLY DELLA, Michael Della, Esq., Of Counsel, Zachary M. Beriloff, Esq., Of Counsel, Attorneys for Plaintiffs
OFFICE OF GENERAL COUNSEL, NIAGARA FRONTIER TRANSPORTATION AUTHORITY AND NIAGARA FRONTIER TRANSIT METRO, INC., John P. DePaolo, Esq., Of Counsel, Attorneys for Defendants, Niagara Frontier Transportation Authority and Buffalo Niagara International Airport
McCARTER & ENGLISH, LLP, Irene M. Hurtado, Esq., Of Counsel, Attorneys for Defendant, JetBlue Airways Corporation
RIGBY SLACK, ET AL PLLC, Patrick J. Comerford, Esq., Of Counsel, Co-Counsel for Defendant JetBlue Airways Corporation
Timothy J. Walker, J.
Defendant, Niagara Frontier Transportation Authority ("NFTA") and Buffalo Niagara International Airport ("BNIA") (collectively, the "NFTA Defendants"), have applied, pursuant to CPLR § 3212, for summary judgment. The NFTA Defendants also seek sanctions against Plaintiffs on the alleged basis that the action is frivolous within the meaning of 22 NYCRR § 130-1.1. Defendant, Jetblue Airways Corporation ("JetBlue"), has cross-moved, pursuant to CPLR ¶¶3211 and 3212, for summary judgment, seeking an order dismissing the Complaint and all cross-claims filed against it by the NFTA Defendants. The NFTA Defendants and JetBlue also join in each others' application against Plaintiffs.
This is an action for personal injuries sustained by Plaintiff, Gina Duffy, arising out of a slip and fall incident that occurred on November 29, 2017, at the Buffalo Niagara International Airport (the "Airport") (the "Incident"). Ms. Duffy's husband, Joseph Duffy, has also asserted a derivative claim.
The "Airport" consists of the physical structure, as opposed to the "BNIA," which is the party Defendant.
FACTUAL BACKGROUND
At the time of the Incident, Ms. Duffy was employed as a claims supervisor for Geico Insurance Company ("Geico") (NYSCEF Doc. No. 80, pp. 12-17). She and two (2) coworkers, non-parties Theresa Capone and Katrina Kern, had been in the City of Buffalo for work at a mediation. As of the Incident, Ms. Duffy had been employed by GEICO for approximately twenty-five (25) years and her caseload consisted of automobile personal injury and property damage claims (Id. ).
After the mediation, Plaintiff and her co-workers traveled directly to the Airport and arrived at approximately 3:15 p.m., close to two (2) hours prior to their scheduled departure to New York City, via a JetBlue flight. Before heading to Gate 8, they decided to go to the Anchor Bar Restaurant, located in the terminal (Id. , at pp. 19-20). The Incident occurred after Ms. Duffy and her co-workers exited the Anchor Bar and were proceeding to Gate 8 in the Airport's main concourse in order to board their flight (Id. , at p. 26-30).
There is conflicting deposition testimony regarding the pace at which Ms. Duffy was walking as she left the Anchor Bar for Gate 8 just prior to the Incident.
Ms. Duffy testified that she was walking "at a normal pace" and when she placed her left foot forward, it slipped like she had "stepped on a sheet of ice" (Id. , at pp. 30-32). However, Ms. Kern testified that she, Ms. Duffy, and Ms. Capone "were hurrying to the gate" in what she described as "a quick walk" (NYSCEF Doc. No. 68, p. 53). When asked if the floor was slippery, Ms. Kern further testified that "I personally didn't slip on it. I don't know" (Id. , at p. 165).
Ms. Kern's testimony is consistent with the testimony of non-parties, Rick Vinson and Nidiana Ramirez. At the time of the Incident, Mr. Vinson was employed by JetBlue as a Supervisor, overseeing operations at the Airport, and Ms. Ramirez was employed by JetBlue as a Gate Agent.
Mr. Vinson testified that he witnessed Ms. Duffy rushing to the gate from the direction of the Anchor Bar. He further testified that "she was definitely rushing;" "rushing;" "at a faster pace than walking" (NYSCEF Doc. No. 74, pp. 15-19). Similarly, Ms. Ramirez testified that she observed Ms. Duffy rushing to Gate 8 from the area of the Anchor Bar. She testified that "I thought there's no need to rush or I said there's no need to rush, reason being there is someone in your party already here" (NYSCEF Doc. No. 75, p. 17). She also described Ms. Duffy as having taken "elongated strides" just prior to falling (Id. , at p. 18); "[i]t was elongated strides. It wasn't just like a normal pace. It wouldn't be how I walk" (Id. ). According to Ms. Ramirez, Ms. Duffy and her co-workers were the last passengers to reach the Gate (Id. , at p. 29).
The flooring in the area of the concourse where the Incident occurred was a terrazzo material, and it is undisputed that the area was not wet at the time of the Incident. It is further undisputed that the floor contained no debris, and that no form of debris caused or otherwise contributed to the Incident.
Ms. Kern described the floor as "shiny" (NYSCEF Doc. No. 68, p. 46). She further testified that any conclusion that the floor had been "just polished or cleaned" would be "speculation" on her part (Id. , at pp. 97-98). In response to being asked whether she thought Ms. Duffy's boots caused her to fall, Ms. Kern testified "I don't know what caused her to fall" (Id. , at p. 164).
Ms. Capone testified that in the eight (8) years prior to the Incident she had walked through the area of the concourse where the Incident occurred almost fifty (50) times (NYSCEF Doc. No. 69, pp.81-82). She described the Airport and the floor, as follows:
The [A]irport is always clean, it's actually a welcome airport to arrive at and, you know, organized and, you know. So, no, I can't say that I noticed the condition of the floor other than it being clean prior to the [I]ncident or even thereafter" (Id. , at p. 82).
In the approximate fifty (50) times she has walked in the area of the Airport where the Incident occurred, she has never slipped or fallen (Id. , at pp. 84-85). She encountered no problems traversing the floor on the date of the Incident (Id. , at p. 89).
Upon falling, Ms. Duffy reached out with her left hand to brace her fall. While the floor was not wet, she described it as "slick," and she "smelled a funny chemical smell ... [l]ike a cleaning product. Something I would - like ammonia" (NYSCEF Doc. No. 80, pp. 32-33).
However, upon falling, the floor left no residue on Ms. Duffy's clothing (including her pants and her boots) (NYSCEF Doc. No. 69, pp. 87-88). Ms. Capone lowered to her knees to assist Ms. Duffy after she fell. When she stood up, Ms. Capone did not notice any discoloration on her pants, nor did she feel any residue on the floor (Id. ). She further testified that her impression that the floor was polished was a visual impression; she neither felt, nor smelled floor polish (Id. , at p. 88).
Mr. Vinson similarly testified that, when he met with Ms. Duffy immediately following the Incident, he did not smell anything out of the ordinary (NYSCEF Doc. No. 74, p. 32).
Plaintiffs deposed three (3) individuals employed by the NFTA Defendants, including Dan Stroehlein, Prentice Moss, and Tracey Williams.
As of the Incident, Mr. Stroehlein had been employed by the NFTA for in excess of eight (8) years and he oversaw terminal operations on a day-to-day basis, working with various departments to maintain the Airport (NYSCEF Doc. No. 70, p. 9). Following the Incident, he completed an Incident Report, wherein he noted that, inter alia , Ms. Duffy was wearing wooden heels and he had not received any complaints about the floor that day prior to the Incident (which occurred at approximately 5:00 p.m.) (Id. , at p. 41-42; 75-76; 80-82).
He further testified that floor cleaning via large floor machines that scrub and squeegee the concourse floor are used during the over-night shift (Id. , at pp. 32-34). Moreover, due to the size of the concourse, only a partial section of the concourse floor is cleaned during one (1) over-night shift, and the night before the Incident the over-night machine treatment was not performed in the area of the floor where the Incident occurred (Id. , at pp. 67-68; 80; 84-86).
As of the Incident, Mr. Moss was the Supervisor of the Airport's custodial staff and had served in such role for sixteen (16) years. As such, he was responsible for directing the custodial assignments, maintaining safe operations at the Airport, and custodial quality control (NYSCEF Doc. No. 56, pp. 7-8; 18). He testified that, inter alia , the terminal floors are cleaned during the 11:00 p.m. to 7:00 a.m. shift; the cleaning machines are referred to as "ride-ons;" a cleaning solution is used in the machines; the floors are also waxed and stripped each night; and the waxing is applied with a mop (Id. , at pp. 9-16).
Mr. Moss further testified that he viewed a video from the date of the Incident which depicts the Incident in real time (the "Video") and, in his opinion, the Video does not reflect a recently waxed floor. He described the floor as "pretty dull" (Id. , at p. 37).
As of the date of the Incident, Ms. Williams was employed by the NFTA as a custodian at the Airport, and she had worked in that role for approximately four (4) years. As such, she was responsible for "keep[ing] the [A]irport clean and neat," including floors, water fountains, and bathrooms. Her shift was from 3:00 p.m. to 11:00 p.m., and she usually worked at Gates 7 and 8 (NYSCEF Doc. No. 73, pp. 7-8, 10, 12-13). While she would address spills, and clean up miscellaneous debris, she never cleaned, waxed, or buffed the terminal floors, because those duties were "the night crew's job" (Id. , at pp. 16, 22).
The Court viewed the Video in its entirety once, and portions of it several times.
The Video depicts the concourse in and around Gate 8, with the entrance to the Gate shown on the right side of the frame. The Video is approximately forty-four (44) minutes long, commencing at 4:30:51 p.m. and ending at 5:14:59 p.m..
The Video depicts, inter alia , the following: hundreds of people of all ages (in excess of five hundred [500] ), most of whom are either carrying luggage or pulling luggage equipped with wheels, traverse the area of the floor at or in the vicinity of the Incident without slipping or falling, and with no apparent difficulty; commencing at 4:36:28 p.m., through approximately 4:48:53 p.m., approximately ninety -four (94) people exit Gate 8, having immediately deplaned an arriving flight; all of these people cross the area of the floor where the Incident occurred without any difficulty; commencing at approximately 4:44:00 p.m., a large crowd of people carrying or pulling luggage, who appear to have recently deplaned a flight beyond Gate 8, pass by Gate 8 as they apparently head toward the exit; all of these people walk through, or in the vicinity of the Incident with no problem; by 4:49:30 p.m., a large crowd begins to form at Gate 8 in the area of the Incident, as people wait to board the flight Ms. Duffy intended to board, and boarding commences at approximately 4:52 p.m., without incident; by 4:57:35 p.m., the crowd has diminished, as most passengers have boarded the flight; Ms. Duffy arrives at Gate 8 in excess of two (2) minutes later, and the Incident occurs at 4:59:52 p.m.; her pace appeared to be hurried, but she was not jogging or running; four or five (4 or 5) persons immediately came to her aid and did so at a hurried pace, but none of them slipped or fell or appeared to have any problem with the floor; at 5:08:14, several police and emergency response personnel arrived on the scene without any problems traversing the floor; and at 4:59:40 p.m. and 5:06:35 p.m., persons can be seen jogging and/or running, without difficulty.
Ms. Duffy was transported from the Airport to nearby St. Joseph's Hospital, located in the Town of Cheektowaga, where she was examined and discharged at approximately 11:00 p.m. or midnight on the date of the Incident (NYSCEF Doc. No. 80, pp. 49-51).
STANDARD OF REVIEW
To obtain summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law ( Ferluck AJ v. Goldman Sachs & Co., 12 NY3d 316, 320 [2009] ). This requires sufficient evidence to shift the burden to the opposing party to produce evidentiary proof sufficient to establish the existence of genuine issues of material fact ( Id. , at 320 ). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment ( Gilbert Frank Corp. v. Fed. Ins. Co. , 70 NY2d 966, 967 [1988] [citation omitted] ). Factual issues raised by the opposing party must be genuine, as opposed to speculative ( Trahwen LLC v. Ming 99 Cent City No.7, Inc. , 106 AD3d 1467, 1468 [4th Dept 2013] ).
DISCUSSION
The NFTA Defendants' Motion for Summary Judgment
The law is well settled that a property owner has a duty to provide a safe premises, free of dangerous conditions. But where a dangerous condition exists, no liability will be imposed on the owner unless it caused the dangerous condition or had actual or constructive notice of it, and an opportunity to remedy it prior to the plaintiff's injury ( Milea v. Ames Dept. Store , 279 AD2d 798 [4th Dept 1995] ).
The NFTA Defendants' submission does not reflect that a dangerous condition existed at or around the area of the concourse floor where the Incident occurred. It is undisputed that the floor was not wet and was free from debris. Notwithstanding the cleanliness of the floor, Ms. Duffy contends that the NFTA Defendants created a dangerous condition, because the floor was allegedly slippery, having described it as "like a sheet of ice" (NYSCEF Doc. No. 80, pp. 30-32).The admissible evidence in the NFTA Defendants' submission which supports Plaintiffs' theory is limited to Ms. Duffy's subjective testimony. However, while her co-worker, Ms. Kern, described the floor as "shiny," she did not describe it as slippery, nor did she slip on the floor on the day of the Incident. Indeed, despite that hundreds (if not thousands) of people of all ages walked on the floor for many hours on November 29, 2017 prior to Ms. Duffy's fall late in the afternoon at approximately 5:00 p.m., not one (1) person - other than Ms. Duffy, slipped on the floor.
Ms. Duffy dismisses the possibility that she may have mis-stepped or slipped, because she was wearing boots with inherently slippery wooden heels, or because she may have been walking at a hurried pace with elongated steps. Her denial of walking at a hurried pace stands in contrast to the testimony of her friend and co-worker, Ms. Kern. Ms. Kern testified that she, Ms. Duffy, and Ms. Capone were all walking at a hurried pace in order to catch their flight to New York City. Two (2) other other eye-witnesses to the Incident, including Mr. Vinson and Ms. Ramirez, also testified that Ms. Duffy and her co-workers were proceeding at a hurried pace, and Ms. Ramirez further testified that Ms. Duffy and her party were the last people to reach Gate 8.
The Court has viewed the Video, which confirms, inter alia , that between approximately, 4:31 p.m. and 5:15 p.m. on the date of the Incident (the Incident having occurred at approximately 5:00 p.m.), hundreds of people walked (many at a hurried pace), and a few ran or jogged in the area of the Incident without slipping and/or falling; approximately one (100) passengers deplaned from the flight just prior to the one Ms. Duffy intended to take and exited Gate 8 at the precise location of the Incident without any difficulties; Ms. Duffy and her companions were among the last people to arrive at Gate 8 for their flight; and they were proceeding at a hurried pace.
It is also undisputed that the floor was not washed or waxed for, at a minimum, several days prior to the Incident (see , NYSCEF Doc. No. 100, which consists, in part, of the NFTA Defendants' Overnight Floor Crew Log Sheets from November 22, 2017 through November 29, 2017, reflecting that the area of the floor washed and waxed was limited to "arrivals - east sliding door," which is not in the vicinity of Gate 8).
Ms. Duffy also described the floor as having an "ammonia" smell after she fell. However, none of the several other people who attended to her immediately following her fall noticed any unusual smells, nor did Ms. Capone notice that the floor left any residue on her clothing upon kneeling on the floor to assist Ms. Duffy. It is inconceivable that an ammonia smell, as related to the overnight washing or waxing of the floor, would be present on a concourse floor that had not been washed or waxed for several days prior to the Incident and which had been walked on by thousands) of people since its last washing and waxing. The record does not support Ms. Duffy's subjective testimony. JetBlue describes such testimony as contrived, contending that Ms. Duffy "manufactured a phantom condition" (NYSCEF Doc. No. 63, ¶7) . Whether or not contrived, it constitutes the type of "[m]ere conclusions, expressions of hope or unsubstantiated allegations or assertions[, which] are insufficient" to defeat summary judgment ( Gilbert Frank Corp., 70 NY2d at 967 ). As the Court of Appeals stated in upholding the dismissal of a slip and fall action, "[t]he mere happening of an accident does not establish liability on the part of the defendant" ( Lewis v. Metro Transp. Auth. , 64 NY2d 670, 671 [1984] ).
In light of the Video depicting in excess of five hundred (500) people in the span of forty-four (44) minutes, it is highly likely that thousands of people walked on the floor in the vicinity of the Incident between the time the floor was last washed and/or waxed and the Incident.
The NFTA Defendants have joined in JetBlue's cross- motion against Plaintiffs and incorporated its legal arguments by reference.
The NFTA Defendants may not be charged with constructive notice of a dangerous condition unless it was visible and apparent, and existed for a sufficient length of time prior to the Incident to permit the NFTA Defendants' employees to have discovered and remedied it ( Desol v. Family Dollar Stores of New York, Inc. , 107 AD3d 1436 [4th Dept 2013] ). It is undisputed that there was no visible and apparent dangerous condition on the floor in the vicinity of the Incident.
Accordingly, the NFTA Defendants have demonstrated entitlement to summary judgment and the dismissal of the Complaint. Thus, the burden of proof shifted to Plaintiffs to submit evidence in admissible form sufficient to establish the existence of genuine issues of material fact ( Ferluck , 12 NY3d at 320 ).
In opposing summary judgment, Ms. Duffy did not submit an affidavit. Rather, she relies on the affidavit of her expert, Stanley H. Fein, P.E., a professional engineer licensed by the State of New York.
In preparing to render his expert opinion, Mr. Fein reviewed the deposition transcripts, the Video, and documents pertaining to floor cleaning and waxing.
The wax used on the floor is known as Buckeye Proclaim, and Mr. Fein opined that,
it is generally and widely known in the professional safety engineering community that Buckeye ProClaim (sic) is considered a wax application that has a very low co-efficient of friction and can cause a slippery and unsafe condition should an end-user over apply this application on a Terrazzo tile floor (NYSCEF Doc. No. 87, ¶8).
Mr. Fein also relied on the subjective (but unsupported) testimony of Ms. Duffy that the floor was "like a sheet of ice" in opining, to a reasonable degree of professional safety engineering certainty, that the negligent and excessive application of Buckeye Proclaim wax was a substantial factor in causing the Incident (Id. , at ¶12).
Mr. Fein rendered his opinion without ever inspecting the floor or the machines that apply Buckeye Proclaim, or by testing a sample of the product actually used. Indeed, he never obtained a sample of Buckeye Proclaim prior to rendering his opinion.
While the Court recognizes that he is a licensed engineer, Mr. Fein's affidavit does not identify any expert credentials obtained by specialized knowledge, skill, experience, training, or education, which are germane to Buckeye Proclaim floor coating, terrazzo flooring, friction analysis, or that would otherwise support his opinion. Indeed, his affidavit reflects that his experience with flooring is limited to the repair and installation of asphalt surfaces (Id. , at ¶3).
Mr. Fein failed to identify the basis for his contention that "it is widely known in the professional safety engineering community that Buckeye Proclaim is considered a wax application that has a very low co-efficient of friction" (Id. , at ¶8). Neither does he provide a reference to the community he cites.
Moreover, such contention is at odds with the Underwriters Laboratories, Inc.'s certification that Buckeye Proclaim is slip resistant as applied to terrazzo flooring (NYSCEF Doc. No. 101).
According to its website, "Underwriters Laboratories is a nonprofit organization dedicated to advancing the UL mission through the discovery and application of scientific knowledge. We conduct rigorous independent research and analyze safety data, convene experts worldwide to address risks, share knowledge through safety education and public outreach initiatives, and develop standards to guide safe, sustainable commercialization of evolving technologies" (see, https://ul.org/).
Throughout his affidavit, Mr. Fein refers to Buckeye Proclaim as a "wax." However, the Material Safety Data Sheet ("MSDS") for Buckeye Proclaim confirms that the product contains no wax (Id. ).
Mr. Fein reviewed the Video and honed in on the Incident, but failed to account for how, or why the numerous other persons walking on the same floor, as depicted in the Video, traversed the floor without any discernable difficulties. He does not explain why Ms. Duffy's step was the only step he considered in rendering his opinion, as opposed to considering her step in conjunction with the hundreds of other steps taken by all of the other persons depicted in the Video.
In addition, Mr. Fein baldly accepts Ms. Duffy's subjective testimony of an "ammonia" smell, despite that the MSDS for Buckeye Proclaim identifies the product's smell as a "sweet polymer scent" (Id. ). Mr. Fein never personally smelled Buckeye Proclaim, because he never obtained a sample of it.
Mr. Fein never tested his theory, and failure to test a theory may serve as a basis for a court to exclude an expert's opinion ( Brooks v. Outboard Marine Corp. , 234 F3d 89 [2d Cir 2000] ).
There is no basis for Mr. Fein's expert conclusion, and it is otherwise belied by the record.
Where an expert's opinion is "connected to existing data only by the ipse dixit of the expert [, a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered" ( Gen. Elec. Co. v. Joiner , 522 US 136, 146 [1997] ).
Black's On-line Legal Dictionary defines "ipse dixit ," as "a bare assertion resting on the authority of an individual" (https://thelawdictionary.org/ipse-dixit/).
Mr. Fein's opinion in the instant matter was derived from similar methodologies previously rejected by numerous courts (see, Parker v. Board of Governors , 2015 NY Slip Op 32036(U) ; Sup Ct, NY Cty, 2015 [summary judgment granted to defendant where Mr. Fein's affidavit found to be inadmissable speculation that failed to raise a question of fact]; Lara v. Delta International Machinery Corp , 174 FSupp3d 719, 738 [EDNY 2016] [in rejecting Mr. Fein's affidavit, the court described it as "bottomed upon nothing more than mere speculation and guesswork" and the court was also troubled by Mr. Fein's "sweeping conclusions"]; Gahn v. Community Props. , 33 Misc 3d 1213(A) [Sup Ct, Nassau Cty, 2011] [summary judgment granted to defendant where the court found Mr. Fein's affidavit to have mischaracterized a compilation of reference standards]; Mejia v. ERA Realty Co. , 2008 NY Slip Op 31543(U) ; Sup Ct, Nassau Cty, 2008 [summary judgment granted to defendant where Mr. Fein's affidavit was found to contain "bare conclusory allegations" that were "insufficient to raise a triable issue of fact"]; Ifill-Colon v. 153 E. 149th Realty Corp. , 2015 NY Slip Op 31898(U) ; Sup Ct, Bronx Cty, 2015 [summary judgment granted in favor of defendant where Mr. Fein's affidavit was found to be based upon mere conjecture and without any probative value; Greco v. Pisaniello , 2014 NY Slip Op 33257(U) ; Sup Ct, Bronx Cty, 2014 [summary judgment granted in favor of defendant where Mr. Fein's opinions were found to be unsupported by any outside sources and lacking in evidentiary foundation, and where he failed to identify any particular section, guideline, or standard for his assertions]; Gettas v. 332-336 East 77th St. Assoc. , 2005 NY Slip Op 30483(U) ; Sup Ct, New York Cty, 2005 [summary judgment granted in favor of defendant where Mr. Fein provided no authority for his conclusion that the underlying floor should have a minimum "measured coefficient of friction," and he provided insufficient evidence for his conclusion that defendant possessed notice of a hazard]; Maldonado v. NYCHA , 67 Misc 3d 1239(A), *3 [Bronx Cty, 2020 [summary judgment granted to defendant where Mr. Fein (referred to as plaintiff's "purported expert") failed to provide sufficient evidence to create a genuine issue of material fact]; Parris v. Jewish Bd. of Family & Children Services, Inc. , 2020 NY Slip Op 31068(U) ; Sup Ct, New York Cty, 2015 [summary judgment granted to defendant where Mr. Fein's affidavit contained no supporting measurements and failed to cite a controlling statute or code]; Rosenberg v. City of Long Beach , 2009 NY Slip Op 30931(U), *6; Sup Ct, Nassau Cty, 2009 [summary judgment granted to defendant, and Mr. Fein's opinion rejected as "pure speculation," where he neither inspected the location of the accident, nor provided any supporting empirical data]; Jones v. City of New York , 32 AD3d 706, 707 [1st Dep 2006] [appellate division reversed denial of summary judgment, finding that "Fein did not offer any supporting data ..., nor did he identify any particular professional or industry standard to substantiate his assertion" of negligence]; Caputo v. Amedeo Hotels LP , 2011 NY Slip Op 32935(U) [New York Cty, 2011] [summary judgment granted to defendants where Mr. Fein's affidavit was found to be unsupported by any data and otherwise amounted to bare conclusory assertions]; Tanton v. Lefrak SBN Ltd. Partnership , 2013 NY Slip Op 30126(U) [New York Cty, 2013] [summary judgment, along with costs and disbursements, awarded to defendant where Mr. Fein's affidavit found to be built upon guesswork and speculation]; Samuels v. Lee , 2016 NY Slip Op 31023(U), *5 [New York Cty, 2016] [summary judgment granted to defendant where Mr. Fein's opinion lacked "probative" value]; [Torres v. Nine-O- Seven Holding Corp. , 2014 NY Slip Op 31465(U), *2 [Nassau Cty, 2014] [summary judgment, along with costs and disbursements, awarded to defendant where Mr. Fein's opinion was found to constitute "unsupported and unsubstantiated speculation"] ).
This Court rejects Mr. Fein's conclusions and affords his affidavit no weight for the same reasons articulated by the above referenced fifteen (15) courts.
JetBlue's Cross-Motion for Summary Judgment Against Plaintiffs
JetBlue's application is granted for the same reasons the NFTA Defendants' motion was granted; namely, the Court finds that a dangerous condition in the vicinity of the Incident did not exist at the time of the Incident; JetBlue did not create a dangerous condition that contributed to the Incident; and JetBlue did not possess constructive notice of any such dangerous condition.
In addition, the 1999 Airport Lease and Use Agreement, between the NFTA and JetBlue, was in effect on the day of the Incident. Sections 6 and 27 thereto provide that the NFTA, exclusively, agrees to operate and maintain the Airport terminal and to maintain it and all common spaces, including those leased by JetBlue, "in a neat, clean and operating condition" (NYSCEF Doc. No. 76, § 27). Section 27 further provides that JetBlue is responsible for maintaining, repairing, and cleaning its ticket counters and airline offices, while the NFTA is responsible for maintaining, repairing, and cleaning the common area floors where the Incident occurred.
JetBlue's Cross-Motion for Summary Judgment Against the NFTA Defendants, Seeking the Dismissal of Their Cross-Claims
Having granted the NFTA Defendants' motion for summary judgment, JetBlue's cross-motion against the NFTA Defendants, seeking the dismissal of their cross-claims against JetBlue, is moot. However, in order to provide the parties with a complete record, in the event the Court had decided to deny the NFTA Defendants' motion, JetBlue's cross-motion against the NFTA Defendants would nonetheless have been granted, pursuant to sections 6 and 27 of the 1999 Airport Lease and Use Agreement, which imposes on the NFTA the exclusive duty to maintain the area of the terminal floor where the Incident occurred.
The NFTA Defendants' Motion for Summary Judgment, as Grounded in Spoliation
The NFTA Defendants also seek summary judgment against Plaintiffs based upon Plaintiffs' alleged spoliation of the boots Ms. Duffy was wearing at the time of the Incident. While the Court need not address this prong of the motion (having determined to grant the NFTA Defendants' motion), it does so to provide the parties with a complete record.
The NFTA Defendants (and JetBlue) contend that the Incident occurred, because Ms. Duffy was wearing boots with an inherently slippery wooden heel and that, as she hurried to Gate 8, the heel cracked and/or slipped due to the wooden nature of the heel. Accordingly, it is critically important that the footwear be made available to Defendants for examination and inspection. Mere photographs will not necessarily show whether the heel cracked, and are incapable of reflecting whether the heels were slippery. Moreover, there are no photographs depicting the bottoms of the heels.
It is well settled that "[u]nder the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR § 3126" ( Helm v. Sung-Hoon Yang, M.D. , 169 AD3d 1458, 1458 [4th Dept 2019] ). Such sanctions include, inter alia , striking all or a part of a pleading; or an order that the issues to which the lost/destroyed information is relevant be deemed resolved against the offending party; or an order prohibiting the disobedient party from supporting or opposing designated claims or defenses ( CPLR § 3126 ). The burden is on the party seeking to impose the sanction to demonstrate,
that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense ( Pegasus Aviation I, Inc. v. Varig Logistica S.A. , 26 NY3d 543, 547 [2015] [internal citations omitted] ).
Unless Plaintiffs concede that the boots Ms. Duffy was wearing at the time of the Incident were inherently slippery and that the heel cracked (in the event it actually cracked), Defendants' ability to prove these facts was significantly compromised by the disappearance of the boots.
Ms. Duffy testified as follows: she received the boots as a Christmas gift in 2016 (NYSCEF Doc. No. 80, p. 188) and, prior to the Incident, had worn them "here and there" (Id. , at p. 234); she never replaced the heels, as there was no need to do so (Id. ); she was transported from the Airport to St. Joseph's Hospital, located in the Town of Cheektowaga ("St. Joseph's"), via ambulance and her boots were removed from her by an emergency medical technician in the waiting area of St. Joseph's emergency room (Id. , at p. 236); she was discharged from St. Joseph's late in the evening of November 29, 2017 (the date of the Incident), and upon discharge, the boots were not returned to her; she went from St. Joseph's to a nearby hotel via Uber, and was accompanied by her co-workers (Id. , at pp. 139-141); upon being discharged from St. Joseph's, she was wearing slipper socks on her feet, which were issued to her during her stay at St. Joseph's; the next morning, Ms. Duffy and her companions traveled to Huntington Memorial Hospital, located in the Town of Huntington, Suffolk County, in a rented mini-van; the drive took approximately eight (8) hours and she wore the slipper socks during the drive (Id. ); during that drive, she never thought about her boots or considered that they were missing; she did not realize her boots were missing until approximately two (2) to three (3) weeks after the Incident, when she went looking for them but could not locate them (Id. ); she never called the ambulance service or St. Joseph's in an effort to retrieve the boots (Id. , at pp. 126-127). She further testified that she never made any effort to locate her boots because they "weren't that important to me" (Id. , at p. 241).
Plaintiffs commenced this action a mere four (4) months after the Incident. Ms. Duffy further testified that she is familiar with the doctrine of spoliation through her twenty-five (25) year employment with Geico (Id. , at pp. 113-114); having served as a claims supervisor as of the date of the Incident.
It is incredulous that Ms. Duffy did not secure the boots. While the boots may not have been important to Ms. Duffy (as she so testified), they are important to the Defendants and the litigation. The Court finds that Ms. Duffy proceeded with a "culpable state of mind," within the meaning of Pegasus Aviation I .
The NFTA Defendants met their burden with respect to spoliation. Had the Court not granted their motion for summary judgment, it would have conducted further proceedings to determine whether the appropriate sanction was the dismissal of the action, or the issuance of an order that the boots would be deemed slippery (and possibly the heel cracked) for purposes of trial.
In light of the foregoing, Plaintiffs have failed to submit evidence in admissible form to create a material issue of fact sufficient to defeat summary judgment.
Accordingly, it is hereby,
ORDERED , that the NFTA Defendants' motion for summary judgment is granted, and the Complaint is hereby dismissed as against them; and it is further
ORDERED , that the Court hereby finds and declares that Ms. Duffy failed to preserve her boots and failed to ascertain, with reasonable inquiry, their whereabouts; and it is further
ORDERED , that while nearing the border of frivolity, the NFTA Defendants' motion for sanctions is denied; and it is further
ORDERED , that JetBlue's cross-motion for summary judgment is granted; the Complaint is hereby dismissed as against it; and all cross-claims are dismissed as against it.
This constitutes the Decision and Order of this Court. Submission of an order by the parties is not necessary. The delivery of a copy of this Decision and Order by this Court shall not constitute notice of entry.