AAT SUPREME COURT OF THE STATE OF NEW YORK005-355 COUNTY OF NEW YORK

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HELEN MARSHALL, index No.: 153837/2016

Plaintiff,

-against- ORDER WITH NOTICE

OF ENTRY

PORT AUTHORITY OF NEW YORK AND NEW

JERSEY, and SCHINDLER ELEVATOR

CORPORATION,

Defendants.

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PLEASE TAKE NOTICE that the within is a certified true copy of an Order dated June

10, 2020, and entered in the office of the Clerk of the Supreme Court, New York County, on

June 10, 2020.

Dated: Woodbury, New York

June 11, 2020

Yours, etc.

KELLER, O'REILLY & WATSON, P.C.

AMANDA A. TERSIGNI

Attorneys for Defendants

PORT AUTHORITY OF NEW YORK ANDNEW JERSEY and SCHINDLER ELEVATORCORPORATION242 Crossways Park West

Woodbury, New York 11797

516-496-1919

TO: CELLINO & BARNES, P.C.

Attorneys for Plaintiff

420 Lexington Avenue - Suite 2140

New York, New York 10170

(212) 804-7400

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SUPREME COURT OF THE STATE OF NEW YORKNEW YORK COUNTY

PRESENT: HON. ROBERT R. REED PART 43

Justice

X INDEX NO. 153837/2016

EN MSE,MOTION DATE 01/23/2020

Plaintiff,MOTION SEQ. NO. 001

_ y _

PORT AUTHORITY OF NEW YORK AND NEW JERSEY,DELTA AIR LINES, INC., NOUVEAU ELEVATOR

DECISION + ORDER ONINDUSTRIES, INC, SCHINDLER ELEVATOR

MOTIONCORPORATION

Defendant.

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The following e-filed documents, listed by NYSCEF document number (Motion 001) 36, 37, 38, 39, 40,41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62

were read on this motion for JUDGMENT - SUMMARY

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

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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 titic 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, I8). 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

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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. 1 5). Halpern

notes that maintenance on the escalator in question was performed monthly and repairs were

timely (id. 1 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 bythe 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 requirean internal reset of the controller which requires the intervention of a mechanic. Inall cases, a restart would require the use of a key that can only be performed by aPort Authority staff member or a Schindler

employee"

(id.).

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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, them is no indication that

stoppage is what caused plaintiff to fall (id 11 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 sufIicient 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 offact"

(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 areinsufficient'"

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]).

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It is well settled that a property owner has a nondelegable duty to maintain and repair the

escalators on its premises (see haacs 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 itsexistence"

for a sufficient length of time to discover and remedy it

(Smith v Costco Wholesale Corp., 50 AD3d 499, 500 [Ist 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).

l·lere, 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 lanotta 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 thislawsuit'

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

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stops. Although plaintiff's expert opines that the accident was caused bydefendants'

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 aconclusion"

(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 probativeforce"

(Guzman v 4030 Bronx Blvd. Assoc. LLC., 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 instrumentalitywithin the exclusive control of the defendant; [and](3) it must not have been due

to any voluntary action or contribution on the part of theplaintiff"

(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 N.Y Auth., 47 AD3d 460, 461 [1st

Dept 2008]). Furthermore, the testimony of Baca and Hatton, along withdefendants'

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.

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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 enterjudgment accordingly.

6/10/2020DATE ROBERT R. REED, J.S.C.

CHECKONE: CASE DISPOSED NON#tNAL DOSPOSITIONGRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDERCHECKIF APPñûFRiaTE: INCLUDESTRANSFERJREASSIGN FlOUCIARYAPPOINTMENT REFERENCE

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