Supreme Court, Queens County, February 14, 2020

Shulman & Hill, PLLC, Brooklyn (Michael M. Levitz and Seth MacArthur of counsel), for plaintiff.

Fitzpatrick & Hunt, Pagano, Aubert, LLP, New York City (Agostino A. Zammiello of counsel), for defendants.

It is ordered that the plaintiff's motion and the defendants' cross motion are decided as follows:

This action arises from an accident that occurred on January 18, 2019, on John F. Kennedy International Airport (JFK), 121-147 U Restricted Perimeter Service Road underpass to Terminal 1 E, in the County of Queens, wherein the plaintiff alleges that the vehicle he was operating was struck in the rear by the vehicle operated by defendant Dymitri D. Champion and owned by defendant Swissport USA.

Plaintiff now moves for summary judgment on the issue of liability. Plaintiff has submitted the following: summons and verified complaint; certified police report; plaintiff's affidavit; and Google photos. In his affidavit, the plaintiff asserted that at the time of the accident he was operating a 2008 Kalmar motor vehicle bearing Port of New York Authority (PONYA) license plate A19679, at 121-147 U Restricted Perimeter Service{**67 Misc 3d at 380} Road underpass to Terminal 1 E of John F. Kennedy International Airport. At the time of the accident, the traffic was moderate. Plaintiff stated that he had slowed down his vehicle due to the traffic conditions, when suddenly and without warning, the defendants' vehicle struck his vehicle in the rear. However, the plaintiff also denied any fault in causing this accident, because the defendants' vehicle struck his vehicle in the rear while his vehicle was stopped. At the time of the accident, the plaintiff also stated that the defendants' vehicle was traveling too close to the rear of his vehicle.

The police report stated that at the time of the accident, defendant Champion was operating a 2006 Ford motor vehicle bearing PONYA license plate A17009. There is no indication that either vehicle had a federal or New York State license plate. The police report also contained, in pertinent part, the following statement:

"Driver of vehicle # 1 [plaintiff] stated that he was driving straight when two vehicles ahead of him slowed down. He then applied his brakes to slow down and vehicle # 2 [defendant Champion] rear ended him. Driver of vehicle # 2 [defendant] stated that he was driving straight when vehicle # 1 [plaintiff] jammed his brakes. Due to the wet road surface and the abrupt stop he was unable to stop in time and struck the rear end of vehicle # 1 [plaintiff]."

Based upon the foregoing, the plaintiff argues that the branch of his motion seeking summary judgment on his claims for common-law negligence should be granted, because the defendant Champion was the sole and proximate cause of this collision. Plaintiff further argues that this motion is not premature.

Defendants oppose the plaintiff's motion, and in the cross motion move for summary judgment dismissing the cause of action based upon a violation of the Vehicle and Traffic Law. Defendants have submitted, among other things, the following: defendant Champion's affidavit; photos; and The Port Authority of New York and New Jersey Airport Rules and Regulations and Appendix B, Ground Vehicle Specifications.

In his affidavit, defendant Champion stated that prior to the accident he was traveling at no more than five miles per hour, because the road was wet and there were other vehicles driving on the same road. Champion stated that the plaintiff's vehicle,{**67 Misc 3d at 381} suddenly and without warning, came to an abrupt and unexpected stop in front of his vehicle. Thereupon, Champion stated that he was forced to step on his brakes. As he stepped on his brakes, Champion stated that his vehicle skidded on the wet roadway and tapped the plaintiff's vehicle. Prior to the accident, Champion stated that he was driving with caution, and there was a 30 to 40 foot distance between the front of his vehicle and the back of the plaintiff's vehicle. After the accident, Champion claims that the plaintiff stated that he stopped short in front of Champion's vehicle, because [*3]something fell off the truck in front of him. Champion also stated that after the accident, the Port Authority police officer issued the plaintiff a "breach of rules."

Based upon the above, the defendants argue that they have submitted nonnegligent explanations for the accident. Specifically, the defendants claim that the police report and Champion's affidavit contradict the plaintiff's affidavit. Defendants further claim that, prior to the accident, Champion was maintaining a reasonable distance between his vehicle and the plaintiff's vehicle, when he skidded on the wet roadway. Due to the conditions on the roadway, and the plaintiff's abrupt and unexpected stop, the defendants claim that the emergency doctrine applies. As such, the defendants argue that issues of fact exist, which preclude granting the branch of the plaintiff's motion for common-law negligence. In the alternative, the defendants argue that the motion is premature, because depositions of the parties have not been held, the Port Authority has not responded to their FOIC request for disclosure for any information relating to this accident, and they have yet to subpoena maintenance records for the plaintiff's vehicle.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Once this showing has been made, the burden shifts to the non-moving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution (see Alvarez v Prospect Hosp.; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

[1] Here, the court finds that the plaintiff failed to establish his prima facie entitlement to summary judgment with respect{**67 Misc 3d at 382} to his claim for common-law negligence. In the plaintiff's affidavit, he stated at the time of the accident he had slowed down his vehicle. However, the plaintiff also stated that when the defendants' vehicle struck his vehicle, his vehicle was at a stop. Significantly, the plaintiff's statement in the police report also states that he "applied his brakes to slow down and vehicle # 2 [defendant Champion] rear ended him." Although a police report ordinarily might not be admissible under the business exception rule, it may be admissible where, as here, it contains admissions and declarations against interest (Penn v Kirsh, 40 AD2d 814 [1st Dept 1972]). Consequently, the plaintiff's statement in the police report is admissible (id.). These conflicting statements by the plaintiff fail to demonstrate that at the time of the accident his vehicle was at a complete stop when the defendants' vehicle struck his vehicle in the rear. Even if the plaintiff had established his prima facie burden, the court finds that the defendant Champion's affidavit sets forth a completely different account of the accident, and raised triable issues of fact as to the manner in which the accident occurred and whether the plaintiff may have caused or contributed to it (Francis v J.R. Bros. Corp., 98 AD3d 940, 941 [2d Dept 2012]). In addition, since the plaintiff has not established his prima facie burden, it is unnecessary to determine if this motion is premature. Accordingly, the branch of the plaintiff's motion seeking summary judgment on his claim for common-law negligence is denied.

As to the branch of the plaintiff's motion seeking summary judgment on his claim of negligence based upon a violation of the Vehicle and Traffic Law, and the defendants' cross motion seeking to dismiss that claim, the court finds as follows:

The plaintiff argues that the defendants are also negligent based upon a violation of the Vehicle and Traffic Law. However, the defendants argue that the Vehicle and Traffic Law is not applicable to this action, because the Vehicle and Traffic Law does not apply to the location where this accident occurred, and the vehicles involved in the accident do not qualify as a "motor vehicle" under the express terms of the Vehicle and Traffic Law.

In opposition to the cross motion, the plaintiff argues, among other things, that both vehicles involved in this accident were "motor vehicles," and were registered to operate at the location of the accident within JFK Airport. Plaintiff further argues that the defendants failed to submit any appellate authority in{**67 Misc 3d at 383} support of their claim that JFK Airport is not subject to the Vehicle and Traffic Law. Plaintiff argues that based upon the findings in Francois v Tang (171 AD3d 1139, 1140 [2d Dept 2019]), the Vehicle and Traffic Law applies in this case. In Francois v Tang, the Second Department applied the Vehicle and Traffic Law in an action where a plaintiff's vehicle was allegedly hit in the rear by a vehicle owned by defendant Delta Airlines at JFK Airport. As such, the plaintiff argues that the cross motion should be denied.

Vehicle and Traffic Law § 1100 provides in pertinent part that the Vehicle and Traffic Law shall only apply "upon public highways, private roads open to public motor vehicle traffic and any other parking lot, except where a different place is specifically referred to in a given section" (Vehicle and Traffic Law § 1100 [a]). In addition, Vehicle and Traffic Law § 134 defines a "public highway" as "[a]ny highway, road, street, avenue, alley, public place, public driveway or any other public way." Furthermore, the Vehicle and Traffic Law defines a "private road" as "[e]very way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons" (Vehicle and Traffic Law § 133).

Pursuant to the Port Authority regulations, the only vehicles permitted to operate within the airport operations area (hereinafter AOA) are vehicles specifically registered with the Port Authority, or a vehicle escorted by a company and vehicle registered to the Port Authority (see The Port Authority of New York and New Jersey Airport Rules and Regulations and Appendix B, Ground Vehicle Specifications). To register a vehicle with the Port Authority, the vehicle must be owned or leased by a company doing business at the airport, must meet certain specific insurance requirements, and must be issued a PONYA license plate. Once registered with the Port Authority, the vehicle is registered for use only at the specific designated airport—meaning a vehicle registered for use at the JFK Airport may not then be used at LaGuardia Airport, or on a public highway (id.). Highway vehicles used within the AOA, and in public areas, must have a federal or state and PONYA license plates (id.). However, highway vehicles with only a PONYA license plate may only operate exclusively within the AOA (id.).

[2] Here, it is undisputed that this accident occurred at Kennedy International Airport, 121-147 U Restricted Perimeter{**67 Misc 3d at 384} Service Road underpass to Terminal 1 E. This area falls within the Port Authority regulations AOA at the airport, and the only vehicles permitted to operate within the AOA are vehicles specifically registered with the Port Authority, or a vehicle escorted by a company and vehicle registered to the Port Authority (id.). Therefore, the area where this accident occurred is not open to public motor vehicle traffic. Consequently, the court finds that the Vehicle and Traffic Law does not apply to the location of the instant accident. In addition, both the plaintiff's and the defendants' vehicle only had PONYA license plates, which were issued by the Port Authority, and not the Department of Motor Vehicles. As set forth above, there is no indication that either vehicle also had a federal or New York State license plate. As such, pursuant to The Port Authority of New York and New Jersey Airport Rules and Regulations, use [*5]of these vehicles was limited to the JFK Airport, and they could not be operated on the highways and roads in the State of New York. As such, the vehicles operated by the plaintiff and defendant Champion do not qualify as a "motor vehicle" under the Vehicle and Traffic Law, and therefore, the Vehicle and Traffic Law does not apply to the vehicles involved in this case.

The plaintiff's reliance upon Francois v Tang is misplaced. In that decision, the Second Department did not discuss whether the Vehicle and Traffic Law applies on restricted roads at JFK Airport. Moreover, while the decision indicates that defendant's vehicle would have had a PONYA license plate, it is unclear whether plaintiff's vehicle would have had such a license. Significantly, there is no discussion in the Francois v Tang decision regarding whether the involved vehicles were "motor vehicles" under the Vehicle and Traffic Law. Finally, in Francois v Tang, the Court relied upon common-law negligence liability—not seeing what should have been seen—not negligence based upon a violation of the Vehicle and Traffic Law.

Based upon the above, the branch of the plaintiff's motion seeking summary judgment for negligence based upon a violation of the Vehicle and Traffic Law is denied, and the cross motion by the defendants dismissing that claim is granted.

Based upon the foregoing, the plaintiff's motion is denied, and the defendants' cross motion is granted.