The following papers numbered 1 to 17 were read on this motion by defendants, PORT AUTHORITY OF NEW YORK AND NEW JERSEY, JFK INTERNATIONAL AIR TERMINAL LLC, and ABM JANITORIAL SERVICES-NORTHEAST, INC. for an order pursuant to CPLR 3212(b) granting summary judgment in favor of defendants and dismissing the plaintiff's complaint on the ground that the plaintiff cannot establish a prima facie case of negligence:

Papers Numbered

Notice of Motion-Affidavits-Memo of Law.............1 - 8

Affirmation in Opposition-Affidavits-Exhibits.......9 - 12

Reply Affirmation..................................13 - 17

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This is an action for damages for personal injuries [*2]sustained by Plaintiff, Yelizaveta Kotlyarova, on December 26, 2010, when she slipped and fell on a wet floor inside one of the entrances into Terminal 4 (the "Terminal") of John F. Kennedy International Airport. Plaintiff alleges that as a result of the accident she sustained, inter alia, a lateral malleolus fracture of the left ankle requiring an open reduction with plates and screws.

The plaintiff commenced this action by filing a summons and complaint on July 6, 2011 and by filing an amended complaint on August 13, 2012, adding ABM JANITORIAL SERVICES-NORTHEAST, INC., as an additional party-defendant. Plaintiff filed a Note of Issue on March 28, 2013. This matter is presently on the calendar of the Trial Scheduling Part for March 10, 2014.

In her bill of particulars, plaintiff alleges that the accident occurred as a result of the negligence of the defendants in the operation, management, maintenance, control, and supervision of the premises; in causing the premises to become and remain after a period of time after notice, either actual or constructive, in a dangerous or hazardous condition; in failing to maintain the premises in a reasonably safe and proper condition; in causing or allowing the premises to become slippery due to an accumulation of ice; in failing to remove and/or improperly removing snow and ice from the premises; in failing to salt the premises; in failing to place matting down in the premises; and in failing to post signs or place adequate warnings of a hazardous condition. Plaintiff claims that the defendant had both actual and constructive notice of the allegedly dangerous condition.

The defendants now move for an order, pursuant to CPLR 3212(b), granting summary judgment on the issue of liability and dismissing the complaint. The defendants allege that at the time the plaintiff slipped, the floors at the Terminal were wet due to tracked-in precipitation from an ongoing snowstorm at the airport. The snowstorm is alleged to have begun earlier in the day and continued throughout the time of the incident and into the next morning. Defendants allege that they took reasonable measures during the storm to keep the premises safe including, clearing the outside walkways, entranceways and floors of snow and placing caution signs and mats inside the Terminal. The defendants contend that based upon the "storm in progress" defense they are not liable for a slip and fall accident resulting from wet conditions inside the Terminal, such as an accumulation of snow and ice, until a reasonable time after the storm has ended. Additionally, the Port Authority claims that it is an out-of-possession landlord and cannot be held liable for a negligent condition in the premises as they relinquished control, [*3]possession, and maintenance of the Terminal to the JFK Airport International Air Terminal pursuant to a written lease.

In support of the motion, the defendants submit an affirmation from counsel, Frank J. Rubino, Esq; copies of the pleadings; a copy of the plaintiff's verified bill of particulars; a copy of the transcript of plaintiff's deposition testimony; a copy of an affidavit from Patrice James; a copy of the lease; a copy of the transcript of the deposition testimony of Dolores Benavides, the operations Manager for JFK; a copy of the deposition testimony of Karen Teran, The Project Manager for ABM; a certified copy of the weather records for JFK Airport for the month of December 2010; a copy of the affidavit of Karen Teran; a copy of the deposition testimony of Patrice James, the Principal Property Representative for the Port Authority; a copy of the Port Authority Patron Accident Report; and a copy of the JFK Medical Injury Report Form.

The plaintiff, YELIZAVETA KOTLYAROVA, age 25, testified at an examination before trial on June 5, 2012. She stated that she had attended Hunter College from 2008 - 2009 where she majored in psychology. She transferred to Stony Brook University in the Fall 2009 and majored in marine vertebrate biology and minored in dance studies. The accident occurred while she was enrolled at Stony Brook. As a result of her injuries, she missed the entire 2010 spring semester following the accident. She returned to school in the Fall 2011.

Ms. Kotlyarova stated that the incident took place at JFK International Airport, Terminal 4, on December 26, 2010, at 8:00 p.m. She testified that on the date of the accident she had reservations to fly to Israel on El Al Airlines. She stated that accident occurred at door 5 in the International Air Terminal where the El Al ticket counters are located. She was in a breezeway or vestibule area which is the space between an external sliding glass door leading from the outside sidewalk and an internal sliding glass door leading into the Terminal when she slipped. With respect to the weather, she recalled that when she arrived at the airport at 7:40 p.m. it was snowing at a steady pace and there was about 2 inches of snow that had collected on the ground. She stated that she had taken a car service to the airport. She exited the vehicle and walked through the sliding glass doors into the breezeway with her luggage. The ground in front of the door was wet but there was no snow buildup. She entered the Terminal and walked around for three or four minutes but she could not find her group. She testified that she wanted to go outside to see if she was in the right area so she exited the terminal through a different set of doors. She stated that [*4]the weather had gotten worse outside and there was a lot of wind and snow flurries. She then returned to the Terminal and entered through door number 5. She entered the breezeway with her back turned, pulling her luggage through the door. As she turned to walk forward through the entrance doors to the Terminal, her left foot slipped from under her and she slipped on a wet metal grate. She stated there was no mat on the floor. She observed that there was a wet slush puddle with snow in it in the breezeway where she slipped. She stated that it looked like people were walking through and leaving whatever they brought in from outside into the breezeway. She did not see any yellow caution or wet floor signs approaching the breezeway. She stated that due to the snow storm, the airport closed later in the evening and her flight, which had been scheduled for midnight, was cancelled at about 10:00 p.m. She was eventually taken to the emergency room at Bellevue Hospital for treatment. Ten days after the incident she had surgery to repair her fractured left ankle.

Patrice James, Principle Property Representative for Port Authority for Terminal 4 at JFK Airport, submits an affidavit dated July 24, 2013. She states she is responsible for the administration of leases for Port Authority at JFK including the lease for Terminal 4. She states that the Port Authority leased Terminal 4 to JFK International Air Terminal(JFKIAT) pursuant to a lease dated July 23, 1997. She states that pursuant to the terms of the lease the Port Authority does not have a duty to maintain Terminal 4 premises including the vestibule area of door number 5 where plaintiff claims to have been injured. Ms. James cites paragraph 36(b), which provides that the lessee assumes the entire responsibility for maintenance of the building and expressly relieves the Port Authority from all responsibility for all repair, replacement, rebuilding and maintenance. The lease at paragraphs 36(b)(i)and (ii) also requires the lessee to remove all snow and ice. The lease also states that the Port Authority shall not be liable for injury to persons other than those occasioned by affirmative acts of the Port Authority, its employees, agents and representatives. Therefore, Ms. James asserts that the complaint against Port Authority of New York and New Jersey should be dismissed because the Port Authority is an out-of-possession landlord, who relinquished possession and control of the lease premises and pursuant to the lease does not owe a duty of care to the plaintiff.

Patrice James also testified at an examination before trial June 6, 2012. She stated that the vestibule area between the outside and inside doors to the Terminal where the plaintiff slipped is about ten feet. The floor in the ten foot space is covered with carpet squares. She stated that the lease agreement [*5]between Port Authority and JFKIAT requires the terminal to be responsible for snow removal. She stated that to her knowledge that the Port Authority had not been notified prior to the subject accident of a wet slippery condition in the foyer or breezeway between the exterior and interior doors at entry 5 at Terminal 4. She did not know how long the slippery condition existed prior to the accident.

Dolores Benavides, an operations manager for the JFK International Air Terminal was deposed on May 22, 2013. She stated that ABM cleaners was a company that was contracted by JFK to clean Terminal 4. ABM was responsible for cleaning the entire terminal including maintaining the floors, cleaning, picking up debris and all of the garbage. She stated that the outside sidewalks are also the responsibility of ABM but the roadways are cleaned by Snow Lift. She stated that generally when the conditions are wet, there is signage put out to caution pedestrians and carpets are placed outside the doors. She stated that she never personally was involved with the plaintiff's accident. However, she identified a report prepared by Supervisor Eva Jakubowicz. The report states that the plaintiff slipped and fell on a wet metal flooring plate in the vestibule area. The report indicates that there was no mat in the area in which the plaintiff fell. The report also states that a surveillance video was checked, but that the incident was not visible. Ms. James states that a snow chronology was prepared for December 26, 2010 by the facilities department. One report states that ABM was informed at 9:30 p.m. to clean up snow on the fourth floor that was blown into the building due to vestibule doors malfunction. The report states that at 11:45 p.m. snow was building up on the roadway and sidewalks and ABM was advised to clear snow from exit doors and entrances. The report also states "19:00- 06:00 blowing snow from all departure doors causing puddles to form inside the building." The report also stated "LFS (Line Facility Services) closed all revolving doors and sliding doors except five sliders and the closed doorways were stanchioned off with caution wet signs. ABM ran out of the door mats which would have come in handy especially for the small emergency exit only doorway."

Karen Teran, project manager at JFK Terminal 4 for ABM Janitorial was deposed on June 12, 2013. She testified that ABM has a special crew responsible for special weather related events. If it snows, their responsibility is to clear the walkways, all entrance doors, the front of the building and the five doors on the departure level. She recalls getting a call over the radio on December 26, 2010 stating that a passenger slipped and fell. She stated that on that date all of the doors [*6]had been closed except one and five. When she approached the scene, the plaintiff was still on the floor and the paramedics were there. She also testified that there was a special outdoor carpet between the two doors. She observed that it was wet but she did not observe snow or ice on the carpet. She stated there was a yellow wet floor sign inside the terminal leading to the sliding doors. She believed that the plaintiff slipped between the carpet and the metal plate. Ms. Teran stated that there was an ongoing storm at the time and her people were using snowblowers and salt on the sidewalks. She states that they have a procedure to dry the floors but they wait until the storm calms down. They do not bring out the heaters during the storm. She stated that on December 27, 2010, after the snow had stopped, they put out the blowers to dry the floors and carpets.

With regard to the report stating that ABM was to clean the snow that was blown into the vestibule due to a malfunctioning door, she stated that there was no snow in the vestibules as her company was cleaning it all. There was also an entry in the report stating that ABM was advised to clear the snow from the exit doors and entrances. She stated that there was cleaning being done such as mopping the floors during the time of the plaintiff's fall.

In addition to her deposition testimony, Ms. Teran also submits an affidavit dated July 25, 2013, stating that at the time of the accident ABM had been hired to provide janitorial services at the Terminal including snow removal from the outside walkways of the terminal during snow events. She began working at 6:00 a.m. on December 26, 2010 and continued working through the night due to the snowstorm. She states that since 9:00 a.m. on the 26th the employees continuously used snowblowers to remove the snow from the walkway near the entrance and spread formate, a melting agent on the sidewalk. They also placed wet floor warning signs in the vestibule area between the sliding doors and inside the terminal next to the entrances. The ABM employees also placed rubber mats on the floor inside the terminal to prevent the area from getting slippery from tracked in precipitation. She states that because there was a carpet in the vestibule area, there was no mat placed on top of the carpet. She states that despite ABM's continuous efforts to remove the snow from the walkways outside the entrances to the departure level, the storm was severe and it was impossible to keep the walkways clear at all times. She stated that snow would be blown into the vestibule area from the wind or tracked in by customers walking in from outside. However, this particular storm was so severe the terminal closed for the first time in the four years she had been working there due to inclement whether. She stated that although [*7]the workers were clearing snow, new snow continued to fall covering the ground that was previously cleared. She also states that she observed that the area where plaintiff fell had carpeting and she also observed wet floor signs in the vestibule area and rubber mats placed inside the terminal by the entrance.

The certified meteorological records show that 10.5 inches of snow fell at JFK on December 26th and 5.1 inches fell on December 27th beginning 12:00 p.m. on the 26th and ending about 7:00 a.m. on the 27th.

The JFK medical injury report states that "Ms. Kotlyarova slipped and fell on the wet metal flooring plate (no mat) and injured her left ankle. She was pulling a suitcase and duffel bag." It also states "camera 435 was checked, incident not visible. Cautious Wet' signs visible in the area." The form was completed by Eva Jakubowicz. The Port Authority incident report states that the officer observed the area where the accident occurred to be wet and slippery due to weather conditions.

Defendants contend that the plaintiff's complaint should be dismissed because under New York's storm in progress rule defendants are not obligated to provide a constant remedy to water or melted snow being tracked into their premises and are therefore excused from liability for hazardous conditions caused by an ongoing snowstorm (citing Marchese v Skenderi, 51 AD3d 642 [2d Dept. 2008][under the so-called "storm in progress" rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm]). Defendants contend that the evidence shows that there was an ongoing snowstorm at the time of the incident and the plaintiff slipped on a floor that was wet and slippery due to snow and precipitation being tracked into the premises.

Defendants contend that notwithstanding the storm in progress rule, the defendants took reasonable measures during the storm to keep the premises safe including shutting doors to limit the amount of snow and wind entering the terminal, placing mats and wet floor signs at the terminal entrances and cleaning snow away from the terminal doors and sidewalks (citing Pomahac v TrizecHahn 1065 Ave. of the Ams.. LLC, 65 AD3d 462 [1st Dept. 2009][all of the circumstances regarding a defendant's maintenance efforts must be scrutinized in ascertaining whether the defendant exercised reasonable care in remedying a dangerous condition]. Further, defendants contend that they had no [*8]knowledge of the alleged dangerous condition and there is no evidence that the defendants created the allegedly dangerous condition (citing Smith v Christ's First Presbyt. Church of Hempstead, 93 AD3d 839 [2d Dept. 2012]). Counsel contends that there is no evidence that the defendants received any prior complaints regarding the area of the incident as to provide them with actual knowledge of the wet floor. With respect to constructive notice, the defendants claims that there is no proof in the record giving rise to an inference that the wet condition of the floor existed for a sufficient amount of time to have given the defendant an opportunity to discover and remedy it.

Defendants also claim that the Port Authority, as an out-of- possession landlord, cannot be held liable under a negligence theory for an alleged dangerous condition cased by a snowstorm because the lease places responsibility for snow removal and Terminal maintenance on the lessee.

In opposition to the motion for summary judgment, the plaintiff submits a copy of the log entry for December 26, 2010 and December 27, 2010 entered by E. Jakubowicz stating that "blowing snow from all departures doors caused puddles to form inside the building. LFS closed all revolving doors and sliding doors except door 5 sliders and the closed doorways were stanchioned off with "Caution Wet" signs. ABM ran out of door mats which would have come in handy especially for the small emergency exit only doorways." Plaintiff argues that a defendant moving for summary judgment in a slip and fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (citing Gregg v Key Food Supermarket, 50 AD3d 1093 [2d Dept. 2008] Sloane v Costco Wholesale Corp., 49 AD3d 52 [2d Dept. 2008] Frazier v City of New York, 47 AD3d 757 [2d Dept. 2008]). Plaintiff argues that the storm in progress doctrine does not apply to the instant action because the storm in progress rule cannot be relied upon in a situation where the defendants were aware that the snow and slush was being tracked inside a building and failed to take adequate precautions. Here, it is argued that the alleged slippery condition was present in an enclosed ten foot vestibule and defendants, despite having notice of the snow being blown into the vestibule areas, failed to show that they used reasonable care to remedy the condition after acquiring such notice. Although the courts have held that an owner cannot be responsible to constantly mop up or cover an entire floor during a storm, here it is argued that defendants were aware of a hazardous condition in a ten foot space in the breezeway and f ailed to take reasonable precautions to remedy [*9]the condition.

Plaintiff contends that the defendants have failed to demonstrate, prima facie, that they lacked actual or constructive notice of the condition as a matter of law. Counsel contends that the entries in the logbook raise questions of fact as to when the defendants gained actual notice of the condition. Counsel argues that the logbook entry set forth above suggests that the defendants had actual knowledge of the hazardous condition in the vestibule prior to the plaintiff's accident. Counsel claims that the accident occurred at 8:00 p.m. and the notation indicates that the defendants had knowledge of blowing snow starting at 7:00 p.m. Counsel also states that there is a question of fact as to whether there were yellow caution signs in the area and mats in the breezeway. Although Ms. Taren states caution signs were in place, plaintiff testified she did not observe any such signs in the area. Further, counsel asserts that the evidence submitted demonstrates that there is a question as to why the sliding doors were closed for entry door numbers 1 - 4 but were not closed for door number 5, despite defendants having knowledge of a blowing snow condition in all of the doorways.

In reply, defendants argue that JFKIAT did not have notice and that the Jakubowicz logbook entry referred to her shift time not the time she was made aware of the puddles in the terminal. Ms. Jakubowicz submits an affidavit stating she did not learn of the puddles in the vestibule until after the plaintiff's accident when she went to inspect the area where she fell. She states that she did not see puddles in the vestibule area. She states that puddles would not form in that area because special textured waterproof carpets were installed in the vestibule areas.

Upon review and consideration of the defendants' motion, the plaintiff's affirmation in opposition and the defendant's reply thereto, this court finds as follows:

"A real property owner or a party in possession or control of real property will be held liable for injuries sustained in a slip-and-fall accident involving snow and ice on its property only when it created the alleged dangerous condition or had actual or constructive notice of it" (McBryant v Pisa Holding Corp., 110 AD3d 1034 [2d Dept. 2013] citing Feola v City of New York, 102 AD3d 827 [2d Dept. 2013] quoting Cantwell v Fox Hill Community Assn., Inc., 87 AD3d 1106 [2d Dept. 2011]. A defendant moving for summary judgment must establish, prima facie, that it neither created the snow and ice condition nor had actual or constructive notice of it, and may sustain this burden by presenting evidence that there was a storm in progress at the [*10]time of the plaintiff's accident (see Smith v Christ's First Presbyt. Church of Hempstead, 93 AD3d 839 [2d Dept. 2012] Meyers v Big Six Towers, Inc., 85 AD3d 877 [2d Dept. 2011]).

"Under the "storm in progress" rule, a property owner will not be held responsible for accidents caused by snow or ice that accumulates on its premises during a storm "until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm" (Popovits v New York City Hous. Auth. 2014 NY Slip Op 01444 [2d Dept. 2014] quoting Cotter v Brookhaven Mem. Hosp. Ctr., Inc., 97 AD3d 524 [2d Dept. 2012]). The rule is typically applied to slip and fall accidents which occur on sidewalks and outdoor areas.

However, even where the doctrine is available for indoor slip and fall accidents, the courts have held that "all of the circumstances regarding a defendant's maintenance efforts must be scrutinized in ascertaining whether the defendant exercised reasonable care in remedying a dangerous condition" (Rijos v Riverbay Corp., 105 AD3d 423 [1st Dept. 2013] quoting Pomahac v TrizecHahn 1065 Ave. of Ams., LLC, 65 AD3d 462 [1st Dept 2009]). Here, this Court finds that defendant failed to present sufficient evidence to establish, prima facie, that it did not have actual or constructive notice of the snowy and slippery condition in the vestibule and failed to show, as a matter of law, that it took reasonable measures to remedy the allegedly dangerous condition.

Although it is clear from the testimony and meteorological records submitted by the defendant that a significant snowstorm was occurring at the time of the plaintiff's accident, and that the defendants did take certain actions to prevent snow from entering the building during the storm, there is still a question of fact raised by the evidence as to whether the defendants had actual or constructive notice of the actual dangerous condition inside the vestibule where the plaintiff fell and whether they could have taken further precautions to ameliorate the hazard.

The chronological logbook report prepared by the defendants raises a question of fact as to defendants' knowledge that the snowstorm that was occurring at the time of the plaintiff's accident caused the floor in the vestibule area between the sliding doors to become wet and slippery due to persons tracking water in or from snow being blown in from outside. The evidence, notably the chronological logbook, shows that the defendants were making efforts to place mats down, put signs out and lock certain sliding doors to prevent snow from blowing into the vestibule [*11]areas and into the terminal. The testimony of the plaintiff regarding the wet and snowy condition of the vestibule area and the fact that she fell on a wet metal grate that was not covered with a mat clearly raises a question of fact as to whether the defendants did in fact make reasonable efforts to remedy the dangerous condition in the area where he plaintiff slipped.

Further, the evidence rases questions of fact as to whether there were signs in place in the area where the plaintiff fell, why there were no mats placed in the vestibule area where the plaintiff fell, why the sliders were not closed at entry door number 5 as they were closed at the other exits, and whether the defendants took any or adequate precautions to prevent persons from entering the vestibule. Further because entry door number 5 was left open to permit access into the terminal, there is a question of fact as to whether it was reasonable to fail to cover the wet metal grate where the plaintiff fell with a mat, especially as this was the only open door (see Rosado v Phipps Houses Servs., Inc., 93 AD3d 597 [1st Dept. 2012]).

Looking at the testimony in the light most favorable to the non-moving party, this Court finds that the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint as there are question of fact as to the defendants actual and constructive knowledge of the dangerous condition in the vestibule and whether the defendants failed to use care to remedy conditions which had become dangerous, after actual or constructive notice of such condition (see Hilsman v Sarwil Assocs., L.P., 13 AD3d 692 [3rd Dept. 2004]). Plaintiff's testimony that she was not warned of the wet floor raises a question of fact as to whether the defendant breached its duty to warn(see Toner v National R.R. Passenger Corp., 71 AD3d 454 [1st Dept. 2010][property owners are not liable for slip-and-fall injuries unless they created the hazard or had notice of it but failed to exercise reasonable care to remedy it]). Here, there is an issue as to whether the defendant took reasonable precautions to warn the plaintiff or to remedy the wet and slippery condition in the vestibule after acquiring notice.

Therefore, this court finds that defendant failed to establish its entitlement to judgment as a matter of law. Therefore, it is not necessary to consider the sufficiency of the opposition papers submitted by the plaintiff (see Giraldo v Twins Ambulette Serv., Inc., 96 AD3d 903[2d Dept. 2012] King v 230 Park Owners Corp., 95 AD3d 1079[2d Dept. 2012] Hill v Fence Man, Inc., 78 AD3d 1002 [2d Dept. 2010]).

Accordingly, for all of the above stated reasons, it is hereby,

ORDERED, that the branch of the motion for an order dismissing the complaint against [*12]defendant Port Authority of New York and New Jersey, an out-of- possession landlord who did not have a duty to clear the snow under the terms of the lease , is granted without opposition, and it is further,

ORDERED, that the remaining defendants' motion for summary judgment dismissing the plaintiff's complaint is denied.

This matter remains on the calendar of the Trial Scheduling Part for March 10, 2014.

Dated: March 5, 2014

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.