Singh v Rodney

[*1] Singh v Rodney 2006 NY Slip Op 50426(U) [11 Misc 3d 1068(A)] Decided on March 1, 2006 Civil Court, New York County Rakower, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 1, 2006
Civil Court, New York County

Balwinder Singh, Plaintiff,

against

Perrie J. Rodney, THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY AND CITY OF NEW YORK, Defendants.



300250TSN2005

Eileen A. Rakower, J.

Plaintiff commenced this action to recover damages for injuries allegedly sustained by him when he was assaulted by defendant Perrie J. Rodney while at a taxi hold lot at John F. Kennedy International Airport ("JFK") on April 29, 2002. At the time of his injury, plaintiff was taken to Jamaica Hospital and treated. He did not have any contact with anyone from the defendant Port Authority of New York and New Jersey ("Port Authority") including Port Authority police, or the City of New York ("City"). Nevertheless, plaintiff claims that the Port Authority and City were negligent because they failed to provide security and supervision sufficient to prevent the incident. The Port Authority agreed to assume the City's defense in this case.

The Port Authority now moves for summary judgment claiming that it cannot be held liable in negligence as a matter of law for failing to protect plaintiff [*2]from the criminal assault of a third party, because providing such protection is a government function. At oral argument, plaintiff conceded that the Port Authority and City may not be held liable for any resulting injuries, because there is no special relationship' between them. See, Weiner v. Metropolitan Transportation Authority, 55 NY2d 175 (1982).

Plaintiff argues that defendants knew that there was an "extensive and frequent history" of criminal activity in the taxi hold lot, and that defendants had reason to know that there was a likelihood that plaintiff could be endangered. Plaintiff claims that he is particularly vulnerable because the Taxi and Limousine Commission ("TLC") regulations require him to wait in the taxi hold lot to pick up fares. Plaintiff posits that these facts gives rise to a duty to provide security and a safe place to work because the Port Authority was acting as a proprietary lessee.

Thus the issue of law for this Court to decide is whether the Port Authority and City were acting in a proprietary capacity or a governmental function from which it is immune from liability?

"To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Di Menna & Sons v. City of New York, 301 NY 118 [92 NE2d 918] ). This drastic remedy should not be granted where there is any doubt as to the existence of such issues (Braun v. Carey, 280 App.Div. 1019 [116 NYS2d 857] ), or where the appeal is arguable' (Barrett v. Jacobs, 255 NY 520, 522 [175 N.E. 275] ); issue-finding, rather than issue-determination, is the key to the procedure' (Esteve v. Avad [Abad ], 271 App.Div. 725, 727 [68 NYS2d 322] ). (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, 165 NYS2d 498, 144 NE2d 387)." Ramsammy v. City of New York, 216 AD2d 234, 236-237 (1st Dept. 1995) In addition, "[t]he party opposing the [summary judgment] motion must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests." (Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 967, 525 NYS2d 793, 520 NE2d 512.) Bald, conclusory allegations, even if believable, are not enough. (Id.; Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, 309 NYS2d 341, 257 NE2d 890.) Edison Stone Corp. v. 42nd Street Development Corp.,145 AD2d 249, 251-252 (1st Dept. 1989)

The Court notes that the enabling statute which established the Port [*3]Authority as the operator of JFK states specifically that the Port Authority "...shall be regarded as performing an essential governmental function in undertaking the...maintenance or operation thereof, and in carrying out the provisions of law relating thereto. NY UNCON LAWS §6634 (McKinney 2006)

It is also well established that the allocation of security measures and police forces are a governmental not proprietary function for which a municipal entity is immune from liability. Weiner v. Metropolitan Transportation Authority, 55 NY2d 175, 178-180 (1982) However, it has been found the Port Authority's duty to provide security does not automatically constitute the duty to provide police protection. See, In the Matter of World Trade Center Bombing Litigation, 3 Misc 3d 440, 464 (Sup. Ct. NY Cty 2004). "In determining whether the alleged negligent acts qualify as a governmental activity deserving of immunity, or a proprietary act subjecting the public entity to tort liability, [it] is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which the act or failure to act occurred which governs liability.' ' [Miller v. State of New York, 62 NY2d 511] at 513, 478 N.Y.S2d 829, 467 NE2d 493, quoting Weiner v. Metropolitan Transp. Auth., 55 NY2d at 182, 448 NYS2d 141, 433 NE2d 124." Id. at 462.

The specific acts complained of include the failure to provide security in the taxi holds at JFK. Here plaintiff produces reports of criminal activity and the deposition testimony of Sergeant John Gayson of the Port Authority Police, who stated that there is no security provided at the taxi hold other than routine policing. The charge of negligence here is predicated "upon the defendant's failure in its proprietary capacity as landlord, to issue warnings, or otherwise take appropriate action, with respect to the known and foreseeable dangers posed by incidents of this type to those, such as plaintiff, who could be expected to use the ... property controlled by defendant." Rubino v. City of New York, 114 AD2d 243, 247 (A.D. 1st Dept. 1986)

The Court notes that the Port Authority has been found to be acting in a proprietary capacity by failing to properly design and maintain an airport taxistand at JFK. Forrester v. Port Authority of New York and New Jersey, 139 AD2d 449, 451(A.D. 1st Dept. 1988) There plaintiff was injured when he was struck by a taxi while entering another taxi. The Appellate Division found that the Port Authority [*4] "...had a duty to exercise reasonable care in the operation and maintenance of the taxi loading area, taking into account the danger presented, the likelihood and potential seriousness of injury therefore and the burden of avoiding the danger...Generally resolution of the question of the foreseeability of danger is for the trier of facts... what safety precautions may reasonably be required for a landowner is almost always a question of fact for the jury.' "

Id. at 451

The instant situation is analogous. Issues of fact here include whether there were steps which the Port Authority could have taken to warn or otherwise protect plaintiff, or warn taxi drivers of potential dangers or take other measures to provide security or surveillance in the area. Thus the Court cannot find as a matter of law that the Port Authority was not contributorily negligent in this instance. Rather, it is for the trier of fact to determine what safety precautions may have been reasonably required. To the extent plaintiff's allegations of negligence arose from the failure to have more police patrolling the taxi hold, those allegations must be dismissed as falling within the Port Authority's governmental function. In the Matter of World Trade Center Bombing Litigation, supra , at 466.

Wherefore defendant's motion for summary judgment is granted in part and denied in part. All other relief requested is denied. This constitutes the decision and order of the Court.

Dated: March 1, 2006___________________________

Eileen A. Rakower

J.C.C.