Matter of Lakkis v Deutsche Lufthansa AG.

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Matter of Lakkis v Deutsche Lufthansa AG. 2023 NY Slip Op 33957(U) November 6, 2023 Supreme Court, New York County Docket Number: Index No. 155837/2023 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 155837/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/06/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 56M PART HON. JOHN J. KELLEY Justice -----------------------------------------------------------------------X In the Matter of INDEX NO. 155837/2023 MOTION DATE SYLVANA EL LAKKIS , MOTION SEQ. NO. 08/08/2023 001 Petitioner, - V- DECISION + ORDER ON MOTION DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT, TERMINAL ONE GROUP ASSOCIATION , L.P ., and PORT OF AUTHORITY OF NEW YORK AND NEW JERSEY Respondent. -----------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001 ) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 , 12, 13, 14, 15, 16 were read on this motion to/for DISCOVERY - PRE-ACTION In this proceeding pursuant to CPLR 3102(c) for pre-action disclosure, the petitioner seeks to restrain the respondents, Deutsche Lufthansa Aktiengesellschaft (Lufthansa), Terminal One Group Association , L.P. (TOGA), and Port Authority of New York and New Jersey (Port Authority) , from destroying all video tapes in connection with the petitioner's June 7, 2023 accident, and to compel the respondents to produce all videos, still photos, and documents related to the accident at John F. Kennedy Airport (JFK), and its aftermath. Lufthansa and Port Authority oppose the petition , while TOGA does not. The petition is granted. The petition , which was initiated by order to show cause, was returnable July 31 , 2023, with opposition papers due by July 26, 2023. Lufthansa did not timely oppose the petition , as it submitted its papers on July 31, 2023. Additionally, the petitioner submitted reply papers on July 31 , 2023, although a reply is not permitted when a motion or petition is bought on by order to show cause (see 22 NYCRR § 202.8-d ; Rules of the Justices of the New York County 155837/2023 EL LAKKIS, SYLVANA vs. DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT ET AL Motion No. 001 [* 1] 1 of 4 Page 1 of 4 INDEX NO. 155837/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/06/2023 Supreme Court, Civil Branch, Rule 13[b][IV]; Part 56 Rule ll[c]). Nonetheless, in its discretion, the court will consider both the late opposition papers and the reply . According to the petitioner, she arrived at JFK Terminal One on June 7, 2023, having flown in on a Lufthansa Airlines flight. Upon landing, she was escorted off the airplane in a wheelchair by two individuals. After exiting the airplane and alighting on the jet bridge connecting the airplane with the terminal, the two individuals left the petitioner unattended on the jet bridge, and her wheelchair rolled down the sloped jet bridge. The petitioner fell out of the wheelchair and injured her left arm. The petitioner now seeks the identity of the two individuals and their employers in order to name them in future litigation. CPLR 3102(c) authorizes a court to permit a party to conduct pre-action disclosure to aid in framing a complaint "and identifying prospective defendants" (Sims v Metropolitan Transp. Auth., 123 AD3d 496, 496 [1st Dept 2014]; see Walker v Sandberg & Sikorski Corp. Firestone, Inc., 102 AD3d 415, 415 [1st Dept 2013]; Matter of Champion v Metropolitan Tr. Auth. , 70 AD3d 587 , 588 [1st Dept 201 O]). A petitioner seeking leave to conduct pre-action disclosure must demonstrate that he or she has a potentially viable cause of action against some person or entity, and that the disclosure sought is material and necessary to proof of an actionable wrong (see Matter of Woodbridge Structured Funding, LLC v Pissed Consumer, 125 AD3d 508, 508 [1st Dept 2015); Matter of Peters v Sotheby's Inc. 34 AD3d 29, 34 [1st Dept 2006]; Liberty Imports v Bourguet, 146 AD2d 535 , 536 [1st Dept 1989)). The resort to pre-action disclosure, however, "is not permissible as a fishing expedition to ascertain whether a cause of action exists" in the first instance (id. at 36). The petitioner has established that she has a potentially viable cause of action against one or more of the three respondents to recover for her injuries. She further established that she seeks pre-action disclosure to determine the identity of the two individuals and their employers and , thus, '"to determine the identities of the parties"' (Liberty Imports v Bourguet, 155837/2023 EL LAKKIS, SYLVANA vs. DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT ET AL Motion No. 001 [* 2] 2 of 4 Page 2 of 4 INDEX NO. 155837/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/06/2023 146 AD2d at 536 , quoting Matter of Houlihan-Parnes [Cantor, Fitzgerald & Co.}, 58 AD2d 629, 630 [2d Dept 19771). Moreover, an affidavit by someone with first-hand knowledge of the underlying facts is necessary when seeking pre-action disclosure (see Afflick v Turner Constr. Co., 2011 NY Slip Op 32068[U], *5-6, 2011 NY Misc LEXIS 3709, *6 [Sup Ct, NY County 2011 , Jul. 22, 2011]; see also Nicol v Rotterdam, 134 AD2d 754, 755 [3d Dept 1987] [attorney affidavit insufficient]). While the petitioner initially did not submit such an affidavit, she did so in her reply papers that the court has elected to consider in deciding this motion. Hence, CPLR 3102( c) is satisfied and the petition should be granted. The court notes that Lufthansa submitted an affidavit from its duty manager, Angelique Bhikharie, stating that it does not own, operate, or possess the jet bridge, any video surveillance equipment, or photographs in connection with the incident at issue. Inasmuch as the petitioner is also seeking documents, Lufthansa shall provide that relevant discovery or an affidavit from someone with knowledge that such documents do not exist. Accordingly, it is ADJUDGED that the petition is granted; and it is further, ORDERED that within 20 days after service of a copy of this order with notice of entry upon them, the respondents Deutsche Lufthansa Aktiengesellschaft, Terminal One Group Association, L.P., and Port Authority of New York and New Jersey, shall provide the petitioner with any and all videos, still photos, and documents related to the incident at hand and its aftermath; and it is further, ORDERED that service of a copy of this order with notice of entry by overnight delivery upon Deutsche Lufthansa Aktiengesellschaft, 1400 RXR Plaza West, Uniondale, NY 11556, Terminal One Group Association , L.P. , Terminal One Building 55, Jamaica, NY 11430, and Port Authority of New York and New Jersey, 150 Greenwich Street, New York, NY 10007, and by 155837/2023 EL LAKKIS, SYLVANA vs. DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT ET AL Motion No. 001 [* 3] 3 of 4 Page 3 of 4 INDEX NO. 155837/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/06/2023 uploading a copy of this order with notice of entry to the New York State Court Electronic Filing (NYSCEF) system shall be deemed good and sufficient service. This constitutes the Decision, Order, and Judgment of the court. 11/6/2023 DATE CHECK ONE: ~ CASE DISPOSED GRANTED DENIED APPLICATION : SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 155837/2023 EL LAKKIS, SYLVANA vs. DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT ET AL Motion No. 001 [* 4] 4 of 4 OTHER REFERENCE Page 4 of 4

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