Jian Ming Liang v Port Auth. of N.Y. & N.J.
2012 NY Slip Op 31071(U)
April 16, 2012
Supreme Court, New York County
Docket Number: 100020/08
Judge: Michael D. Stallman
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
MICHAEL D. STALLMAN
Index Number : 100020/2008
MOTION SEQ. NO.
LIANG, JlAN MlNG
PORT AUTHORITY OF NY AND NJ
SEQUENCE NUMBER : 003
APu 2 3 2012
The following papem, numbered Ito
Notlce of Motion; Afflrmatlon
were read on thls motion and cross rnotlons f r surnmL$Judgment
IN O W .
- Exhlblts A J
Notlce of Cross Motlon-Afflmatlon
- Exhlblta A 4
- Exhibits A-R
Notlce of Cross Motion-Afflrmation
Afflrmatlon In Opposition-Exhiblb A-F; Afflrmatlon In Opposltlon-Exhibits A-@No(s).
Afflrmatlon in Opposltlon- Exhlbits A-F
Afflrmatlon In Partlai Opposltlon-Exhiblts
Reply Afflmatlon; Reply Afnrmation; Reply Afflmatlon- E x h l b h S [Affldavlt],
7 ; 8; 9
11: 12: 13-14
Upon the foregoing papers, it is ordered that this motion and cross motions
are decided in accordance with the annexed memorandum decision and
HQN. MICHAEL D. STALLMA
2. Check If approprlate: ............................
3. Check If appropriate: ................................................
1 CASE DISPOSED
0GRANTED IN PART
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: IAS PART 21
Index No. 100020/2O08
- against THE PORT AUTHORITY OF NEW YORK AND
NEW JERSEY, LARO MAINTENANCE COW.,
LARO SERVICE SYSTEMS, INC., NEW Y O U
CITY TRANSIT AUTHORITY, THE CITY OF NEW
Y O N & h4ETROPOLITAN TRANSIT
Decision and Order
In this personal injury action arising out of an alleged slip and fall accl&ni%
â I .J
the Port Authority Bus Terminal, the Port Authority of New York and New Jersey
(Port Authority) and its cleaning contractor seek, among things, summary judgment
dismissing the complaint as against them. The New York City Transit Authority
(NYCTA) and the Metropolitan Transportation Authority (MTA), sued herein as the
Metropolitan âTransitâ Authority, also seek summary judgment dismissing the
complaint and cross claims.
Plaintiff alleges that, on January 16, 2007 at 12 P.M., he slipped on ârefhe,
debris and garbageâ at the Port Authority Bus Terminal at the walkway near the
entrance to the subway station for the number 7 train (Griffin Affirm., Ex D [Verified
Bill of Particulars] âI[âI[ 2-5 .) The debris allegedly consisted of âfood peels and mashed
food substance.â (Id, T[ 18.) The supplemental bill of particulars alleges âactual and
constructive notice is claimed.â (Kozak Affirm., Ex I.) According to a Port Authority
âPatron Accident or Property Damage Report,â the location of plaintiffs accident was
â625 8* Ave N Y NY 10018 N/W Subway Mezz.â (Griffin Affirm., Ex G; Kozak
Affirm., Ex P,)
Plaintiff testified at his deposition, âI did not saw [sic]anything before I fell.
I was walking, I was walking towards the glass door and near the pillar suddenly my
right feet [sic]stepped on something and I slid[ ] and fell on my left knee.â (Griffin
Affirm., Ex E [Liang EBT] at 24.) Plaintiff was asked, âThe debris that you say you
slipped on, can you tell me for how long it was there before your accident?â (Id, at
82.) He answered, âI did not - I did not notice it before I stepped on it. After I fell,
I saw it. It was a piece of a fruit peel.â (Id.) When asked to describe what the debris
looked like, he answered,
âA. It was jelly.
A. After I stepped on it, it rolled together like in round form.
Q. Can you describe its approximate size after you stepped on it?
A. Not big. Just like this (indicating).ââ
(Id. at 83.)
Nelson Pineiro, a General Maintenance Supervisor for the Port Authority,
testified at his deposition that he was the individual responsible to oversee contract
and maintenance services at the Port Authority Bus Terminal on the date of plaintiffs
alleged accident. (Kozak Affirm.,Ex M [Pineiro EBT], at 11, 13.) Pineiro was shown
a photograph marked as Plaintiffs Exhibit 4 (Griffin Affirm., Exs H, I), which
Pineiro identified as âthe Subway Mezzanine, North Wing Subway Mezzanine.â
(Pineiro EBT, at 39.) Pineiro testified that the Port Authorityâs cleaning contractor
was responsible for cleaning the mezzanine area, and that the cleaning contractor on
January 16, 2007 was Laro Maintenance. (Id. at 39.)
Louis Vacca, Jr. testified on behalf of Laro Maintenance COT. At his
deposition, he stated that he was employed by â L a o Services,â2and he was the vice
president of operations at Laro Services on the date of plaintiffs alleged accident.
(Griffin Affirm., Ex F [Vacca EBT], at 7.) When asked if there was an agreement
between Laro Services and the Port Authority with regard to Laro Services cleaning
Several counsel at the deposition stated on the record that plaintiff was indicating the
size of a quarter or the size of a grape. (Liang EBT, at 83.)
Laro Mainentance Corp. and Laro Service Systems, Inc. are both named as defendants in
this action. Laro Service Systems, Inc. answered for both defendants, stating in its answer that it
was âalso sued herein as L a o Maintenance Corp.â (Kozak Affirm., Ex F.)
and maintaining the Port Authority Bus Terminal, Vacca answered, âYes.â (Id. at 8.)
Vacca was shown the photograph marked as Plaintiffs Exhibit 4 at Pineiroâs EBT,
and he was asked:
âQ-As far as you know, under the agreement that was in effect between
the Port Authority and Laro Services, the cleaning services, was it Laro
Servicesâ[s] responsibility to clean the area depicted in that picture?
A. Up to the door entrances. Up to that line (indicating).
Q. Point out door entrances into the subway?
A. Yes. The inside Port Authority piece we maintained.
A. Just to clarify, that whole white terrazzo area up to the doorway
entrance, thatâs our point of cut off, thatâs what we clean up to.â
(Id. at 10-1 1.)
By decision and order dated October 2,2009, Justice Beeler granted the City
of New Yorkâs motion for summaryjudgment dismissing the complaint and all cross
claims as against the City, reasoning,
âAccording to the affidavit of James J. Whooley, principal title examiner
in the New York City Law Department . . . all deeds to the bus
terminalâs property as of January 15,2007, the day before the accident,
were in the name of the Port Authority. City, therefore, had no interest
in or responsibility for the accident site.â
(Kozak Affirm., Ex J.)
Laro Maintenance Corp. now moves for summary judgment dismissing the
complaint and all cross claims as against it, on the ground that it did not have either
actual or constructive notice of the piece of âfruit peelâ that allegedly caused
plaintiffs slip and fall. The Port Authority also cross-moves for summaryjudgment
dismissing the complaint and all cross claims as against it, or in the alternative, for
summary judgment in its favor against Laro Service Systems, Inc. and Laro
Maintenance Corp. on its cross claims for contractual indemnification and breach of
an agreement to procure insurance naming the Port Authority as an additional insured.
Finally, NYCTA and MTA cross-move for summary judgment the complaint and all
cross claims as against it, on the ground that they do not own or control the area
where plaintiff allegedly fell, Plaintiff opposes the motion and cross motions.
The standards for summary judgment are well settled.
âThe 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. Failure to make such prima facie showing requires a denial of the
motion, regardless of the sufficiency of the opposing papers. Once this
showing has been made, however, the burden shifts to the party
opposing the motion for summary judgment to produce evidentiary
proof in admissible form sufficient to establish the existence of material
issues of fact which require a trial of the actionââ
(AZvarez v Prospect Hosp., 68 NY2d 320, 324 [ 1986][internal citations omitted]).
motiou for s u mary judgment
Both Laro Maintenance C o p and the Port Authority contend that they had no
actual or constructive notice of the condition that caused plaintiffs alleged slip and
defendant who moves for summary judgment in a slip-and-fall action 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.â (Smith
v Costco Wholesale Corp., 50 AD3d 499, 500 [lst Dept 20081.) âTo meet its initial
burden on the issue of lack of constructive notice, [a] defendant must offer some
evidence as to when the area in question was last cleaned or inspected relative to the
time when the plaintiff fell.â (Grudlo v Toys R US, Inc., 72 AD3d 1024 [2d Dept
As a threshold matter, the Court rejects plaintiffs argument that defendants
were required to plead lack of notice as an affirmative defense. â[Aln affirmative
defense is any matter âwhich if not pleaded would be likely to take the adverse party
by surpriseâ or âwould raise issues of fact not appearing on the face of a prior
pleading.ââ (Butler v Catinella, 58 AD3d 145,150 [2d Dept 20081.) Neither situation
is present in this case, because plaintiffs supplemental bill o f particulars, which
amplified the pleadings, claimed actual and constructive notice. Indeed, notice
would bear the burden of proof at trial; as such, it is not an affirmative defense by
Turning to the issue of notice, Vacca testified at his deposition that, to the best
of his knowledge, there were no reports of any hazardous spills or debris that were
produced by L a o during the day of plaintiffs alleged accident. (Vacca EBT, at 47.)
The Port Authority submits a copy of a âLao Maintenance Corporation Daily Log
Sheetâ dated January 16, 2007, for âTour 8 6:OO AM
PMâ and another page
with the heading âTuesday January 16,2007.â (Kozak Affirm., Ex 0,) the second
page, âTuesday January 16,2007,â are a list of entries which state, in pertinent part:
start d w inspection
d w inspection complete all floors and lobbies satisfactory
check employee parking lot and start exterior inspection.â
Plaintiff objects to this document as hearsay, because the document itself does
not indicate that it is a document produced by Laro personnel in the ordinary course
of business. Alternatively, plaintiff argues that the document does not state whether
â d w inspectionâ included the subway mezzanine concourse where plaintiff allegedly
fell, and does not indicate the time when inspection of the subway mezzanine
However, in reply to plaintiffâs opposition, the Port Authority submitted an
affidavit from Vacca, who states
Maintenance Corp. Daily Log Sheet & Checklist dated January 16,
2007. These records are a fair and accurate representation of documents
kept by Laro in the order course of business.
The NW area referred to in the documents refers to the
northwestern portion of the Port Authority Terminal including the
concourse and the mezzanine.â
(Kozak Reply Affirm., Ex S.)
Thus, the documents offered indicate that the inspection of northwest subway
mezzanine occurred at some time between two hours to 30 minutes before plaintiff
allegedly fell. The checklist states that the inspectiopstarted at 1O:OO A.M. and ended
at 11:30 A.M., whereas plaintiff allegedly slipped and fell at 12:OO P.M. The fact that
the checklist dated January 16, 2007 does not indicate the specific time when the
northwest subway mezzanine was inspected is not material. Assuming that the
northwest subway mezzanine was inspected two hours before plaintiff allegedly fell,
such an inspection would not be so remote in time as not to meet defendantsâ prima
facie burden of lack of notice.
Plaintiff fails to raise a triable issue of fact as to whether Laro Maintenance
C o p had notice of the condition that caused plaintiffs alleged slip and fall.
Contrary to plaintiffs argument, Vacca did not testify that defendants had no records
as to how often the area where plaintiff allegedly fell was actually checked on the
date of the alleged accident. Vacca was asked at his deposition,
âQ Do you maintain records with regard to how often the area or
particular area in the Port Authority was scanned on a particular day?
A. Do I maintain any?
Q. Does Laro Services maintain?
Q. Do you have those particular records with regard to January l6* of
2007, how often they were scanned?
Q. The area.
A. I donât, no.
Q. Does Laro Seruice[s] have that type of docurnentation?
A. 2 1 did at the time. I wouldnât know now.â
(Vacca EBT; at 20-2 1 [emphasis supplied].) Later during the deposition, Vacca was
âQ. You previously testified there were people that patrolled the areas
during shifts. How many people were during each shift? How many
people were patrolling the are during each shift?
Q. Do you have any documentation as to the time that one of these
patrols that Laro would have passed the area in question on January 16,
(Id. at 3 1-32.) Vaccaâs answer that he did not have any documentation as to when the
areas were patrolled does not raise any triable issue as to whether the checklist dated
January 16, 2007 was a business record of Laro Maintenance Corpy Vacca had
testified earlier in the deposition that such records existed; his answer that he himself
did not have such documentation is not inconsistent with his testimony or with his
As to the Port Authority, plaintiff points out that Pineiro testified at his
deposition that Port Authority staff was ârequired to patrol the area looking for any
sort of debris or anything of that nature.â (Pineiro EBT, at 40.) According to Pineiro,
at least three Contract Services Supervisors, who were Port Authority employees,
would inspect or patrol the northwest subway mezzanine. (Id., at 72-73 .) Although
the Port Authority does not submit any evidence as to when these employees last
inspected the area where plaintiff allegedly fell, the Court rejects plaintiffâs argument
that Port Authority may not rely upon L a o Maintenance Corporationâs Daily
Maintenance Log and Checklist dated January 16,2007 to meet its own prima facie
burden on this motion of demonstrating lack of actual or constructive notice.
The Port Authority accepted the proposal of Laro Maintenance Corporation to
perform general cleaning at the Port Authority Bus Terminal. (Griffin Affirm., Ex J;
Kozak Affirm., Ex Q.) Because the Port Authority hired Laro Maintenance
Corporation for the purpose of inspecting and cleaning areas of the Port Authority
Bus Terminal, it may therefore rely upon the records of its cleaning contractor to meet
its prima facie burden of summary judgment.
Plaintiff fails to raise a triable issue of fact as to whether the Port Authority had
notice of the condition that caused plaintiffs alleged slip and fall. The fact that the
âPatron Accident or Property Damage Reportâ is blank in the sections âArea Last
Cleaned by B.A.â and âArea last Inspected by B.A.âdoes not rebut defendantsâ prima
facie showing that they lacked actual or constructive of the condition that caused
plaintiffs alleged slip and fall.
Therefore, Laro Maintenance Corp.âs motion for summary judgment and the
Port Authorityâs cross motion for summary judgment are granted, and the complaint
and any cross claims by or against L a o Maintenance C o p , Laro Service Systems,
Inc., and the Port Authority are dismissed. Plaintiffâs argument that he may recover
in tort against L a o Maintenance Corp. for the alleged breach of its contractual duty
to inspect and clean the Port Authority Bus Terminal is unavailing. (Espinal v
Melville Snow Contrs.,98 NY2d 136, 141 .) Plaintiff does not argue that any
of the three situations set forth in Espinal-where a potential liability in tort may
exist-were present here.
NYCTA and MTAâs Cross Motion, for Summary Judgment
NYCTA and MTAâs cross motion for summary judgment is granted. Plaintiff
testified at his deposition that he slipped and fell within the Port Authority Bus
Terminal. As Justice Beeler found in his prior decision and order granting summary
judgment dismissing the action as against the City of New York, âall deeds to the bus
terminalâs property as of January 15,2007, the day before the accident, were in the
name of the Port Authority.â (Kozak Affirm., Ex J.) Moreover, Pineiro testified that
the Port Authorityâs cleaning contractor was responsible for cleaning the mezzanine
Plaintiff fails to raise a triable issue of fact as to whether NYCTA and MTA
own or control the area where plaintiff allegedly slipped and fell. Plaintiff argues that
NYCTA and MTA have duties with regard to the area because plaintiff allegedly fell
near a pillar above which hangs a large sign marked âSUBWAY.â (Neuman Opp.
Affirm,, Ex A.) It is not reasonable to infer that NYCTA and the MTA (as opposedâ
to the Port Authority) installed the âSUBWAYâ sign or that, by installing the sign,
NYCTA or the MTA would therefore have a legal duty to keep to inspect and clean
the area below the sign. In any event, plaintiff submits no evidence as to who
installed the â S U B WAYâ sign.
Therefore, NYCTA and MTAâs cross motion for summary judgment
dismissing the complaint and any cross claims by or against them is granted.
Accordingly, it is hereby
ORDERED that the motion for summary judgment by defendant Laro
Maintenance C o y . is granted; and it is further
ORDERED that the cross motion for summary judgment by defendant Port
Authority of New York and New Jersey is granted; and it is further
ORDERED that the cross motion for summary judgment by defendants New
York City Transit Authority and Metropolitan Transportation Authority (sued herein
as Metropolitan Transit Authority) is granted; and it is further
ORDERED the complaint is dismissed with costs and disbursements to
defendant as taxed by the Clerk upon the submission of an appropriate bill of costs,
and all cross claims by and against defendants the Port Authority of New York and
New Jersey, Laro Maintenance Corp., Lard Service Systems, Inc., New York City
Transit Authority, and Metropolitan Transportation Authority (sued herein as
Metropolitan Transit Authority) are dismissed; and it is further
0R.DERED that the Clerk is directed to enter judgment accordingly.