Opinion
18804/06.
Decided June 17, 2011.
The following papers numbered 1 to 12 read on this motion by defendants for an order dismissing plaintiff's complaint and granting summary judgment in favor of the defendants pursuant to CPLR 3212.
PAPERS NUMBERED Notice of Motion — Affidavits — Exhibits — Memo of Law .... 1 — 4 Affirmation in Opposition — Affidavit — Exhibits ......... 5 — 9 Reply Affirmation — Memo of Law .......................... 10 — 12Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:
Plaintiff Harriet Zizzo (hereinafter "Plaintiff") commenced this personal injury action against defendants The Port Authority of New York and New Jersey, Delta Airlines, Inc and Song Airlines (hereinafter collectively "Defendants") to recover damages for injuries allegedly sustained on October 3, 2005, when she tripped and fell over the doorway saddle located at the doorway of the women's bathroom near Gate 26 located within Delta's Terminal 2 at John F. Kennedy International Airport. Defendants move for summary judgment dismissing the complaint on the grounds that plaintiff cannot establish that a defective or dangerous condition existed on the premises that caused Plaintiff to fall, has no standing to bring a valid claim under the American With Disabilities Act, and has failed to establish proof for the required elements of a claim of private or public nuisance. For the reasons set forth below, Defendants' motion is granted and Plaintiff's complaint is dismissed.
It is well established that summary judgment should be granted when there is no doubt as to the absence of triable issues. ( See Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231; Andre v. Pomeroy, 35 NY2d 361, 364.) The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. ( See Zuckerman v. City of New York, 49 NY2d 557, 562.) If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position. ( See Zuckerman v. City of New York, supra.)
"Whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury." ( Trincere v. County of Suffolk, 90 NY2d 976, 977 citing Guerrieri v. Summa, 193 AD2d 647 [2nd Dept 1993].) "To impose liability upon a defendant in a trip-and-fall action, there must be evidence that a dangerous or defective condition existed, and that the defendants either created the condition or had actual or constructive notice of it." ( Leary v. Leisure Glen Home Owners Ass'n, Inc. , 82 AD3d 1169 [2nd Dept March 29, 2011] citing Dennehy-Murphy v. Topia Serv. Ctr. , 61 AD3d 629 .) "A defendant has constructive notice of a defect when the defect is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected." ( Leary at 1170 citing Denney-Murphy at 629.) "However, a property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip." ( Hargrove v. Baltic Estates, 278 AD2d 278 [2nd Dept 2000] [plaintiff tripping over 3/4 inch door saddle found to be trivial defect].)
As in Hargrove, the doorway saddle in the within action was approximately 3/4 of an inch in height. There is no dispute that the saddle was located in a well lit area with nothing obstructing plaintiff's view of said saddle. Plaintiff contends that the saddle was more of a bridge correcting the 1 3/4 inch height differential between the bathroom and the entryway; however, the plaintiff later concedes that the "lip" plaintiff tripped over was merely 3/4 of an inch in height. Accordingly, Defendants have made out their prima facie entitlement to summary judgment on the issue of whether the doorway saddle was a dangerous or defective condition.
In opposition, Plaintiff argues that the issue of whether a dangerous or defective condition exists is generally a question for the jury, depending on the peculiar facts and circumstances. Plaintiff cites to Sanna v Wal-Mart Stores Inc. 271 AD2d 595 [2nd Dept 2000] and Guerrieri v Summa.193 AD2d 647 [2nd Dept 1993] in support of its opposition. In declining to grant summary judgment, the Wal-Mart court concluded that "injuries resulting from trivial defects are generally not actionable" but whether or not an action may be subjected to summary judgment depends on the peculiar facts and circumstances of even a trivial defect. ( Sanna v. Wal-Mart Stores, Inc., 271 AD2d 595 [2nd Dept 2000].) The facts and circumstances include "the width, depth, elevation, irregularity and appearance of the defect along with time place and circumstances. . . ."( Id.) In contrast, the Summa court concluded that an elevated metal strip that did not exceed three quarters of an inch in height did not possess the characteristics of a trap or snare and therefore was not an actionable defect, granting summary judgment and dismissing the complaint. ( Guerrieri v. Summa, 193 AD2d 647 [2nd Dept 1993].) In the within action, Defendants established that the saddle was not in excess of three quarters of an inch and submitted exhibits/pictures which established that the saddle was not a trap or a snare.
In further opposition, plaintiff attaches the affidavit of Stanley H Fein, a licensed engineer in the State of New York. Fein alleges that since there was no door installed to the entrance of the subject restroom, the Building Code does not require the use of a saddle at that location. The court notes that the expert fails to specify what Building Code he is referencing. Furthermore, an "expert must offer concrete proof of the existence of the relied-upon standard as of the relevant time, such as a published industry or professional standard or evidence that such a practice had been generally accepted in the relevant industry." ( Hotaling v. City of New York , 55 AD3d 396 , 398 [1st Dept 2008] citing Jones v. City of New York , 32 AD3d 706 , 707 [1st Dept 2006].) Failure to provide specific data to indicate the basis for an expert's conclusion renders such opinion speculative, conclusory, and lacking in probative value. ( Paladino v. Time Warner Cable , 16 AD3d 646 , 648 [2nd Dept 2005]; see also Green v. New York City Housing Authority, 81 AD3d 890 [2nd Dept February 22, 2011].) Accordingly, as Plaintiff's expert affidavit fails to contain published industry or professional standards or any data to substantiate his claim, the expert's opinion is of no probative value.
Defendants further contend that Plaintiff has no claim under section 4.13.8 of 28 C.F.R. 36, an Appendix of the American with Disabilities Act ("ADA") which implements Title III of the ADA. The stated purpose of the Appendix is to set "guidelines for accessibility to places of public accommodation and commercial facilities by individuals with disabilities." To bring a valid suit, a Title III claimant must "establish that (1) he or she is disabled within the meaning of the ADA; (2) that the defendants own, lease, or operate a place of public accommodation; and (3) that the defendants discriminated against the plaintiff within the meaning of the ADA." ( Roberts v Royal Atlantic Corp., 542 F.3d 363, 368 [2nd Cir. 2008].) Based on plaintiff's testimony she was not an individual disabled within the meaning of the ADA, and therefore has no standing as a claimant under Title III. Furthermore, defendants correctly point out that plaintiff improperly uses the ADA as a safety guideline for a private right of action for a non-disabled individual when the true purpose of the ADA is to address discrimination. In opposition, Plaintiff's do not refute Defendants' argument.
Finally, Defendants contend that there is no factual basis for claims of private or public nuisance as asserted by the plaintiff. "The elements of a private nuisance cause of action are an interference (1) substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act." ( Aristides v. Foster , 73 AD3d 1105 , 1106 [2nd Dept 2010].) "A public, or as sometimes termed a common, nuisance is an offense against the State and is subject to abatement or prosecution on application of the proper governmental agency." ( Copart Industries, Inc. v. Consolidated Edison Co. of New York, Inc., 41 NY2d 564, 568.) Defendants establish that Plaintiff has failed to set forth the grounds for either a public or private nuisance. In opposition, Plaintiff fails to dispute Defendants' contentions.
For the reasons set forth above, defendants' motion for summary judgment dismissing the Plaintiff's complaint is granted.
This constitutes the decision and order of the court.