Opinion
153837/2016
06-10-2020
Helen MARSHALL, Plaintiff, v. PORT AUTHORITY OF NEW YORK and New Jersey, Delta Air Lines, Inc., Nouveau Elevator Industries, Inc, Schindler Elevator Corporation, Defendant.
PLAINTIFF: Kreindler & Kreindler LLP, 750 Third Avenue, 32nd Floor, New York, NY 10017, By: Erin Ressa Applebaum, Esq., Cellino & Barnes, 420 Lexington Avenue, Suite 2140, New York, NY 10170, By: Kathleen E Beatty, Esq. DEFENDANTS: PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Keller, O'Reilly & Watson, P.C., 242 Crossways Park Dr W, Woodbury, NY 11797, By: Kathleen Victoria Judith Shir Meara, Esq., Patrick J. Engle, Esq., Kevin William O'Reilly, Esq., and Amanda Ashley Tersigni, Esq., DELTA AIR LINES, INC., Shearer PC, 90 Forest Avenue, Locust Valley NY 11560, By: Douglas Andrew Shearer, Esq. NOUVEAU ELEVATOR INDUSTRIES, INC., Law Offices of Peter J. Verdirame, 47-55 37th Street, Long Island City, NY 11101, By: Peter J. Verdirame SCHINDLER ELEVATOR CORPORATION, Keller, O'Reilly & Watson, P.C., 242 Crossways Park Dr W, Woodbury, NY 11797, By: Kathleen Victoria Judith Shir Meara, Esq., Patrick J. Engle, Esq., Kevin William O'Reilly, Esq., Amanda Ashley Tersigni, Esq., and Dana K. Palmieri
PLAINTIFF: Kreindler & Kreindler LLP, 750 Third Avenue, 32nd Floor, New York, NY 10017, By: Erin Ressa Applebaum, Esq., Cellino & Barnes, 420 Lexington Avenue, Suite 2140, New York, NY 10170, By: Kathleen E Beatty, Esq.
DEFENDANTS: PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Keller, O'Reilly & Watson, P.C., 242 Crossways Park Dr W, Woodbury, NY 11797, By: Kathleen Victoria Judith Shir Meara, Esq., Patrick J. Engle, Esq., Kevin William O'Reilly, Esq., and Amanda Ashley Tersigni, Esq.,
DELTA AIR LINES, INC., Shearer PC, 90 Forest Avenue, Locust Valley NY 11560, By: Douglas Andrew Shearer, Esq.
NOUVEAU ELEVATOR INDUSTRIES, INC., Law Offices of Peter J. Verdirame, 47-55 37th Street, Long Island City, NY 11101, By: Peter J. Verdirame
SCHINDLER ELEVATOR CORPORATION, Keller, O'Reilly & Watson, P.C., 242 Crossways Park Dr W, Woodbury, NY 11797, By: Kathleen Victoria Judith Shir Meara, Esq., Patrick J. Engle, Esq., Kevin William O'Reilly, Esq., Amanda Ashley Tersigni, Esq., and Dana K. Palmieri
Robert R. Reed, J.
This is an action for personal injury allegedly sustained by plaintiff Helen Marshall on November 24, 2015. Plaintiff alleges that the ascending escalator on which she was riding at LaGuardia Airport stopped suddenly, causing her to fall. Defendants, Port Authority of New York and New Jersey (PANYNJ) and Schindler Elevator Corporation (SEC) (collectively, defendants) move, pursuant to CPLR 3212, for an order granting summary judgment dismissing the complaint.
BACKGROUND
Plaintiff testified that, on November 24, 2015, she was riding an ascending escalator at LaGuardia Airport (plaintiff's deposition, New York St Cts Elec Filing System [NYSCEF] Doc No. 50 at 37-38). Her left hand was on her carry-on luggage, while her right hand was on the escalator handrail (id . at 48-49). She had ridden midway up the escalator when it stopped suddenly and the step she was on "vanished" (id . at 41, 58-59). Plaintiff fell backwards, landing on her back, with her head facing downwards and her feet facing upwards (id . at 62). There were no other riders on the escalator with her, nor were there any eyewitnesses to her accident (id . at 56). After the fall, an airline employee placed her in a wheelchair and an accident report was completed (id . at 57, 87).
Thomas Hatton testified on behalf of PANYNJ. He has been employed by PANYNJ for 30 years, 10 of which were in the title of unit maintenance supervisor (Hatton deposition tr NYSCEF Doc No. 51 at 8-9). His duties included writing and procuring maintenance contracts for PANYNJ and serving as liaison to outside vendors that contract with LaGuardia Airport (id . at 10-11). Hatton testified that SEC maintains the escalator at issue (id . at 14). The escalators are inspected on a monthly basis by SEC and any calls for repairs are recorded on work tickets and in a log book detailing the work performed, by whom and the date and time (id . at 31, 34, 38). There are safety devices along the escalator that, when tripped, will shut off the escalator (id . at 35-36). If that occurs, SEC or a PANYNJ employee would be required to reset the safety device (id . at 63). There are also stop buttons at the top or bottom of the escalator that is accessible to the public (id . at 60). He stated that there is no record of plaintiff's accident and he has never heard of an escalator stopping suddenly (id . at 46, 59).
Ladislav Baca testified on behalf of SEC. He was employed by SEC for 45 years before retiring in 2016, and had worked at LaGuardia Airport since 1998 (Baca deposition tr, NYSCEF Doc No. 52 at 10, 18). Baca stated that he made monthly maintenance inspections of the escalator in question and both SEC and PANYNJ inspected the safety switches once a year (id . at 20, 25, 28). He explained that safety switches can turn an escalator off and are located in approximately 20 places on the escalator (id. at 23-24). SEC, PANYNJ and the general public also have access to the emergency shut off switch located at the top and bottom of the escalator (id . at 77-78). Unless a safety switch or emergency switch is activated, the escalator will not stop (id . at 53). In the event that a safety switch is tripped and the escalator stops, a manual reset with keys is required (id . at 100). Baca further testified that, if an escalator stops, it slides about three quarters of a step and is meant to stop softly (id . at 49, 51). The slide is checked and measured during monthly inspections (id. at 51). There have been no instances, Baca testified, where the escalator does not slide before stopping (id . at 50). Baca further testified that 90 percent of all stoppages were due to comb plates, which prevent passengers' shoes from being caught in the escalator (id . at 23, 95). There were no maintenance, repair or inspection records for the date of the alleged incident (id . at 127-128).
EXPERT AFFIDAVITS
In support of their motion, defendants submit an expert report by John Halpern, an engineer in the field of vertical transportation (Halpern expert aff, NYSCEF Doc No. 53 ¶ 1). In addition to reviewing deposition testimony, SEC and PANYNJ inspection, maintenance and log records, among other records and manuals, he conducted a site inspection (id . ¶ 5). Halpern notes that maintenance on the escalator in question was performed monthly and repairs were timely (id . ¶ 11). There was no indication that the escalator plaintiff alleges to have stopped suddenly ever stopped (id . ¶ 12). He explains,
"The subject escalator cannot restart itself after it stops and requires the use of a key switch in order to restart. Furthermore, the escalator can only be restarted by the Port Authority if the escalator is caused to stop by a skirt switch, a comb plate switch, an upthrust switch, a stop switch or a power outage. All other causes require an internal reset of the controller which requires the intervention of a mechanic. In all cases, a restart would require the use of a key that can only be performed by a Port Authority staff member or a Schindler employee"
(id .).
Halpern concludes that the subject escalator was maintained on a regular and systematic basis in accordance with industry standards (id . ¶ 14). Further, he states that, while stoppage of the escalator can occur even on a properly maintained escalator, there is no indication that stoppage is what caused plaintiff to fall (id . ¶¶ 18-19).
In opposition, plaintiff submits the expert affidavit of Patrick A. Carrajat, an elevator and escalator expert who reviewed, among other documents, deposition testimony and maintenance, inspection and repair logs of PANYNJ and SEC (Carrajat aff, NYSCEF Doc No. 56 ¶¶ 2, 4). Carrajat opines that the increase from two violations in 2014 to seven in 2015 is indicative of a lack of sufficient preventative maintenance (id . at 6). He concludes that with a history of 23 outages in 12 months the stoppage of the escalator on November 24, 2015 was caused by a lack of proper cleaning, lubrication, examination, adjustment and repair of the escalator by Schindler (id . at 8).
DISCUSSION
"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 eliminate any material issues of fact" ( Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ; see also Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985] ) Once a prima facie showing has been made, in order to defend the summary judgment motion, the opposing party must show facts sufficient to require a trial of any issue of fact ( Casper v. Cushman & Wakefield , 74 AD3d 669, 669 [1st Dept 2010], lv dismissed 16 NY3d 766 [2011] ). " ‘[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient’ " to defeat a motion for summary judgment ( Siegel v. City of New York , 86 AD3d 452, 455 [1st Dept 2011], quoting Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ).
It is well settled that a property owner has a nondelegable duty to maintain and repair the escalators on its premises (see Isaacs v. Federated Dept. Stores, Inc ., 146 AD3d 762, 764 (2d Dept 2017]; Dykes v. Starrett City, Inc ., 74 AD3d 1015, 1016 [2d Dept 2010] ). In premises liability actions, a defendant moving for summary judgment has "the initial burden of making a prima facie demonstration that it neither created the hazardous condition, nor had actual or constructive notice of its existence" for a sufficient length of time to discover and remedy it ( Smith v. Costco Wholesale Corp ., 50 AD3d 499, 500 [1st Dept 2008] ). In order to establish lack of constructive notice, a defendant must provide some evidence regarding the last time the site was inspected relative to the accident ( Isaacs, 146 AD3d at 764 ).
Here, defendants have established their prima facie entitlement to judgment as a matter of law by demonstrating that the escalator was regularly inspected and maintained, and that defendants did not have actual or constructive notice of a prior similar incident or an ongoing condition that would have caused the escalator to stop suddenly with vanishing steps.
In opposition, plaintiff has failed to raise a triable issue of fact (see Ianotta v. Tishman Speyer Props, Inc ., 46 AD3d 297, 298 [1st Dept 2007] [plaintiff failed to raise an issue of fact "where it does not appear that the incidents noted in the elevator service report log on which plaintiff relies ‘were of a similar nature to the accident giving rise to this lawsuit’ and ‘were caused by the same or similar contributing factors’ "] [citations omitted] ). While plaintiff points to several instances where safety switches were triggered and the escalator required a manual reset, no records indicate steps vanishing or disappearing (plaintiff's aff in opposition, NYSCEF Doc No. 55 ¶¶ 25-44). Indeed, almost every maintenance or repair ticket reviewed by Baca at his deposition was due to comb plate switches, requiring a manual reset with keys (NYSCEF Doc No. 52 at 75-95). There were no tickets issued for vanishing steps, or sudden or abrupt stops. Although plaintiff's expert opines that the accident was caused by defendants' failure to properly inspect, maintain and repair the escalator, these assertions are merely speculative, unsupported by the record, and, thus, have no probative value (see Diaz v. New York Downtown Hosp. , 99 NY2d 542, 545 [2002] ). "An expert may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion" ( Rosato v. 2550 Corp ., 70 AD3d 803, 805 [2d Dept 2010] ; see also Roques v. Noble , 73 AD3d 204, 206 [1st Dept 2010] ; Santoni v. Bertelsmann Prop., Inc ., 21 AD3d 712, 715 [1st Dept 2005] ). "In the absence of record support, an expert's opinion is without probative force" ( Guzman v. 4030 Bronx Blvd. Assoc. L.L.C ., 54 AD3d 42, 49 [1st Dept 2008] ).
Contrary to plaintiff's contention, defendants may not be held liable pursuant to the doctrine of res ipsa loquitur. For res ipsa loquitur to apply,
"(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff"
( Morejon v. Rais Constr. Co. , 7 NY3d 203, 209 [2006] ). A plaintiff generally cannot be precluded from relying on res ipsa loquitur once facts warranting its application has been demonstrated ( Weeden v. Armor El Co ., 97 AD2d 197, 202 [1983] ). Here, however, plaintiff has failed to establish that the escalator was within the exclusive control of the defendants, since it was continuously used by the public (see Parris v. Port of NY Auth ., 47 AD3d 460, 461 [1st Dept 2008] ). Furthermore, the testimony of Baca and Hatton, along with defendants' expert affidavit, establishes that emergency stop buttons are located at the top and bottom of the escalator that are accessible to the public ( Ebanks v. New York City Tr. Auth ., 70 NY2d 621, 623 [1987] ). Plaintiff's expert does not opine that the location of those emergency stop buttons constituted a design defect or otherwise was not in keeping with accepted industry standards.
Accordingly, defendants' motion for summary judgment is granted in its entirety.
CONCLUSION
Based upon the foregoing, it is
ORDERED that defendants Port Authority of New York and New Jersey and Schindler Elevator Corporation's motion (motion sequence number 001) for summary judgment is granted and the complaint against them is dismissed with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.