Defendant the Port Authority of New York and New Jersey ("Port Authority") moves for summary judgment (CPLR 3212), on the grounds that it was an out-of-possession landlord, and did not create or have actual or constructive notice of the alleged condition that caused plaintiff to trip. Plaintiff cross-moves for leave to amend the complaint to add the lessee, Delta Airlines, Inc. ("Delta"), as a party defendant, arguing the claim against Delta is timely under the relation-back doctrine (CPLR 203 [b], [f]). Defendant opposes the cross-motion on the grounds that plaintiff's claim is governed by the Warsaw Convention (Art. 17, 49 US Stat 3000, 3018, reprinted following 49 USC § 40105), which requires suit to be brought within two years, and does not permit application of the relation-back doctrine.

Plaintiff Adriana Astudillo alleges she was injured on January 25, 2001, when she tripped over a carpet bulge while boarding an Aeromexico flight at Gate 2, Terminal 3 in JFK International Airport ("JFK Airport"). She commenced the instant action against the Port Authority one year later. Port Authority answered the complaint, denying allegations that it owned, managed or controlled the area where the accident occurred.

In December of 2003, plaintiff deposed the Port Authority's manager for properties and commercial development, who testified that Port Authority leases JFK Airport from the City of New York and that, at the time of the accident, Port Authority subleased all of Terminal 3 to Delta (motion, exhibit H, Thomas Maher dep., pp. 8-11). The Port Authority witness further testified that Delta owned the jetway bridge, and was obligated under the sublease agreement to maintain the entire Terminal facility and to defend and indemnify Port Authority with regard to personal injury actions (id., pp. 12, 14, 19). The Port Authority-Delta lease, turned over in response to a discovery demand in March of 2004, contains a broad clause placing "all [*2]responsibility for all repair, replacement, rebuilding or maintenance" on Delta, and relieving Port Authority for such responsibility (section 11), and a broad indemnification and hold harmless provision (section 16) (Maher affidavit, exhibit A).

The Port Authority relies on substantial authority, directly on point, in support of its position that it is not liable for injuries arising from the alleged defective condition of the carpet within the leased terminal, since "the express and unambiguous language of [the lease] reveals that defendant was an out-of-possession landlord with a limited right of reentry" (DeLeon v. Port Authority of NY and NJ, 306 AD2d 146 [1st Dept. 2003]; see also D'Orlando v. Port Authority of NY and NJ, 250 AD2d 805 [2d Dept. 1998], terminal lease with airline expressly relieved Port Authority of any obligation to maintain and repair leased area, and "limited right to reenter the leased premises to inspect and to make major structural repairs did not suffice to give rise to liability for a transitory snow-and-ice condition"; Love v. Port Authority of NY and NJ, 168 AD2d 222 [1st Dept. 1990], Port Authority not liable where plaintiff fell inside terminal leased by United Airlines at JFK).^[FN1]

Plaintiff argues that Port Authority may nevertheless be held liable as an owner of the premises, because the alleged carpet bulge violated industry standards, and the Port Authority has a statutory obligation to safely maintain the premises (New York City Administrative Code, § 27-127). However, it is settled that "an out of possession landlord with a general right of reentry, is not liable for general maintenance defects, but only for structural failures or specific statutory violations" (Raynor v. 666 Fifth Ave. Ltd. Partnership, 232 AD2d 226 [1st Dept. 1996], hole in carpet is not structural defect; see Thompson v. Port Authority of NY and NJ, 305 AD2d 581 [2d Dept. 2003], "Although the Port Authority had the right to enter the premises for inspection and repair, the plaintiff failed to offer any evidence establishing the existence of any structural design defect in violation of a specific statutory provision"). Further, the Administrative Code provision relied upon is not sufficiently specific to give rise to liability for injuries arising from a bulging carpet (see Lane v. Fisher Park Lane Co., 276 AD2d 136 [1st Dept. 2000], cabinet door not structural; Raynor v. 666 Fifth Ave. Ltd. Partnership, supra; Santiago v. Port Authority of NY and NJ, 203 AD2d 217 [1st Dept. 1994], "a landlord out of possession may not be held liable for plaintiff's injuries in the absence of specific violations of the Administrative Code not here demonstrated"; Love v. Port Authority of NY and NJ, supra). Thus, even if plaintiff's assertions [*3]concerning industry standards were supported by a proper evidentiary foundation, they would not create a factual issue as to whether there was a structural defect or specific statutory violation for which the landlord could be held responsible.

Accordingly, defendant's motion for summary judgment is granted.

II. Plaintiff's Cross-Motion for Leave to Amend

The decision whether to permit an amendment to the complaint is committed to the discretion of the trial court, and leave to amend pleadings shall be freely granted absent a showing of prejudice or unfair surprise (Mallory Factor, Inc. v. Schwartz, 146 AD2d 465, 467 [1st Dept. 1989]; Fahey v. County of Ontario, 44 NY2d 934, 935 [1978]). Leave to amend will be denied, however, where the proposed claim is palpably insufficient (Bencivenga & Co. v. Phyfe, 210 AD2d 22 [1st Dept. 1994]). When a party seeks not only to amend the pleadings, but also to assert claims against persons sought to be joined as additional parties in the action (CPLR 1003), the court may also consider the prejudice to the other defendants, who may need to prepare a defense on behalf of the additional parties, and the extent of the delay in moving to add the new parties and the reasons therefor (Haughton v. Merrill Lynch, Pierce, Fenner & Smith Inc., 305 AD2d 214 [1st Dept. 2003]; Konrad v. 136 East 64th Street Corp., 246 AD2d 324 [1st Dept. 1998]).

Plaintiff seeks leave to serve a proposed amended complaint on Delta, arguing that the claim is not time-barred because the relation-back doctrine (CPLR 203 [b] and [f]), applies. For relation-back to apply, it must be shown that (1) both claims arose out of the same conduct, transaction or occurrence; (2) the new party is united in interest with the original defendant, and, by reason of that relationship, can be charged with such notice of the institution of the action that he or she will not be prejudiced in maintaining a defense on the merits; and (3) the new party knew or should have known that, but for a mistake, excusable or not, by plaintiff as to the identity of the proper parties, the action would have been brought against him or her as well (Mondello v. New York Blood Ctr-Greater NY Blood Program, 80 NY2d 219, 226 [1992]).

Port Authority argues that it is not "united in interest" with Delta since they have differing defenses (Valmon v. 4 M & M Corp., 291 AD2d 343 [1st Dept. 2002], parties with differing defenses not vicariously liable and not united in interest; compare Austin v. Interfaith Medical Center, 264 AD2d 702 [2d Dept. 1999], party bound by contractual indemnification agreement to indemnify hospital was united in interest with hospital, with Hilliard v. Roc-Newark Associates, 287 AD2d 691 [2d Dept. 2001], although agreement required one party to indemnify other, they were not united in interest in absence of vicarious liability). It may also be observed that plaintiff was less than diligent in determining the correct party, since the Port Authority's answer signaled a dispute over the issue of management and control of the terminal and, even after discovery of facts indicating Delta was the lessee responsible for maintenance of the area, plaintiff did not promptly seek to amend the complaint (see Tucker v. Lorieo, 291 AD2d 261 [1st Dept. 2002], leave to amend to assert claims against new defendant denied where "plaintiff did not diligently attempt" to ascertain new party's identity through discovery).

Regardless of whether the three-prong test could be met, Port Authority argues that the claim against Delta is untimely under the applicable provisions of the Warsaw Convention, which requires a claim to be brought within two years or else be "extinguished," with the [*4]"method of calculating" the limitation period to be determined by the law of the court in which the action is brought.^[FN2]

Preliminarily, the Warsaw Convention applies, and preempts state law, when a passenger is injured while "embarking" on an aircraft in international travel (El Al Israel Airlines v. Tsui Yuan Tseng, 525 U.S. 155 [1999], interpreting Article 17 of the Convention; King v. American Airlines, Inc., 284 F.3d 352 [2d Cir. 2002]). Notwithstanding plaintiff's contention that the Warsaw Convention is inapplicable because she had not yet "embarked" on the plane, it is well-settled that a passenger who is actively in the process of boarding an airplane is within the scope of the Treaty (King v. American Airlines, Inc., 284 F.3d 352 [2d Cir. 2002], plaintiffs who "had already checked in for their flight, received their boarding passes, and boarded the vehicle that was to transport them from the terminal to the aircraft" were in process of embarking; Day v. Trans World Airlines, Inc., 528 F.2d 31, 33-34 [2d Cir. 1975], passengers who had surrendered tickets, passed through passport control, entered an area reserved exclusively for departing passengers, and assembled at the departure gate in readiness for departure, were within scope of Treaty). Accordingly, any claim plaintiff may have had against Delta exists under Article 17 of the Warsaw Convention, and not state law.

The two-year period prescribed by Article 29 of the Warsaw Convention has generally been viewed, not merely as a statute of limitations, but as a condition precedent to suit, which is "often deemed not subject to tolling" (Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 143 [2d Cir. 1998]; Kahn v. Trans World Airlines, Inc., 82 AD2d 696, 443 N.Y.S.2d 79, 87 [2d Dept. 1981], "[T]he time limitation incorporated in article 29 was intended to be in the nature of a condition precedent to suit" and bars right to bring suit after two years). Upon analysis of the language and legislative history of the Treaty, courts have concluded that statutory and equitable tolling provisions of state law cannot be applied to extend the two-year period to sue under the Warsaw Convention (Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 144 [2d Cir. 1998], holding the infancy tolling provision of C.P.L.R. § 208 inapplicable in suit under Warsaw Convention). The provision of Article 29 referring to local law for the "method of calculation" of the limitations period has been construed as "merely ... invok[ing] the power of the forum court to determine whether the plaintiff accomplished the filing within the limitation period, a question that may involve ... the proper party or agent for receipt of process, and the means of service-in other words, matters bearing on when an action has been 'brought'" (Fishman v. Delta Air Lines, Inc., supra). Although the relation-back provision is found in CPLR 203, titled "method of computing" limitations periods, it operates in the same way as a tolling provision, which keeps alive a claim that would otherwise be time-barred (see McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C203:3, commencement of an action against [*5]one party "operates to toll the statute as to the other" party united in interest). The court therefore concludes that the relation-back toll provision cannot be used to revive a claim that has been "extinguished" by virtue of the two-year condition precedent to suit contained in Article 29 of the Warsaw Convention.

Accordingly, the cross-motion for leave to amend to join Delta as a new party is denied.

The motion for summary judgment is granted and the cross-motion is denied. No sooner than five days after service of a copy of this order with notice of entry and a proposed judgment upon defendant, the clerk shall enter judgment accordingly upon the presentation of appropriate papers.

This decision constitutes the order of the court.

Dated: November 29, 2004

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J.S.C.