James v Port Auth. of N.Y. & N.J.

Supreme Court, Bronx County

Decided on May 19, 2026

Index No. 28233/2016E

Kim Adair Wilson, J.

"NOTICE OF MOTION"(NYSCEF Doc 55), dated and filed November 26, 2025, respectively, by Mark G. Vaughan, Esq. (Shearer PC), counsel for defendants, The Port Authority of New York and New Jersey and Delta Air Lines, Inc., (collectively, "Port Authority"), seeking an order, "pursuant to CPLR §3212: granting summary judgment and dismissing the plaintiff's complaint as against the defendants on the grounds that plaintiff's claims are preempted; granting summary judgment and dismissing the plaintiff's complaint as against the Port Authority with prejudice on the basis of its status as an out of possession landlord; granting summary judgment and dismissing the plaintiff's complaint as against the defendants with prejudice as the condition asserted by the plaintiff as the cause of her alleged accident was neither dangerous nor defective; granting summary judgment and dismissing the plaintiff's complaint as against the defendants with prejudice as the condition asserted by the plaintiff as the cause of her alleged accident was trivial and not actionable as a matter of law;" is GRANTED, solely to the extent, as set forth below.

Plaintiff's action seeks monetary damages for personal injuries allegedly sustained on or about December 31, 2015, when, while employed on behalf of nonparty ABM Industries, Inc. ("AirServ"), plaintiff fell on the tarmac at John F. Kennedy International Airport ("JFK Airport"), Terminal 2, at or near Gate C62, owned and/or controlled by defendants Port Authority and JFK International Air Terminal, LLC ("JFK"). By a stipulation dated November 21, 2017 (NYSCEF Doc 10), plaintiff discontinued her action against defendant JFK, with prejudice. The remaining defendant, Port Authority, now moves for summary judgment dismissing plaintiff's complaint, and further, seeks to amend its answer, pursuant to CPLR 3025, to plead the additional defenses of federal preemption pursuant to the Federal Aviation Act of 1958 and the Airline Deregulation Act of 1978.

Movant states that plaintiff's bill of particulars (NYSCEF Doc 59) alleges that plaintiff tripped on a fuel pit cover while on the tarmac of JFK Airport. Port Authority asserts that plaintiff's deposition testimony (NYSCEF Doc 60) indicates that she had been walking down the airstairs, and that as she stepped off the airstairs her foot "went into an old fuel pump and it was a gap" (NYSCEF Doc 56 at p.4), precipitating her fall. The testimony also [*2]demonstrates that she was familiar with the metal pit covers, that on other occasions she had stepped on them without issue, and that there had been nothing distinctive about the covers' condition on the date of the accident. Port Authority also states that plaintiff stated that AirServ workers had previously complained to their employer about the cracked and uneven condition of the tarmac, and of the shakiness of the airstairs, but that she had never made any complaints to Delta or Port Authority.

Port Authority maintains that it is an out of possession landlord with no duty to maintain the location in question. It says that the testimony of Paul Mara (NYSCEF Doc 62), a General Manager of Facilities for Delta at JFK Airport, establishes that the maintenance of the fuel pit covers was assigned to Delta under the lease agreement with Port Authority, and that the covers are common throughout the airport and are not a tripping hazard. Movant also proffers the affirmation of Port Authority's Manager of JFK Properties and Commercial Development, Dianne Taglich-Oh (NYSCEF Doc 64), who attests that Lease AYC-325, annexed, at sections 11(b)(1) and (3), provide that tenant Delta is solely responsible for the maintenance of the area where the accident occurred. Taglich-Oh also asserts that sections 21(a) and (e), limit Port Authority's right of entry to reasonable times with prior notice to the tenant, further demonstrating that Port Authority had no obligation to inspect or maintain the area, and that Delta had exclusive possession and control of the subject location and pit cover. Movant also annexes the affirmation of expert witness Daniel P. Mazzeo (NYSCEF Doc 65), airport consultant engineer, who opines that the fuel pit covers and jet bridge are compliant with the applicable sections of the Code of Federal Regulations and FAA guidelines, are not defective or dangerous, and that the gap that plaintiff's foot entered provides the necessary clearance for the pit cover to open and close. He further highlights that plaintiff, who was cleared to work in the subject area, had undertaken safety training including general hazard awareness and ramp safety, and that the workers are trained to maintain situational awareness with respect to the ground and their surroundings. Moreover, movant concludes, controlling precedent holds that Port Authority is a state agency exempt from municipal regulation, and need not comply with the New York City Administrative Code.

Separately, movant argues that plaintiff's claims are preempted by Section 1305 of the Airline Deregulation Act supersedes all state laws concerning rates, routes, or air carrier services, and that the alleged hazardous condition directly implicates the fueling of aircraft and was reasonably necessary to the provision of Delta's service. Port Authority further asserts that such preemption can only be circumvented by a showing that the airline's service was performed in an outrageous manner. In addition to summary judgment relief, Port Authority seeks leave to amend its pleading to assert its federal preemption defense.

In opposition, plaintiff highlights Delta's apparent concession that it was in exclusive control and possession of the accident location pursuant to the terms of Lease AYC-325. However, plaintiff contends that Port Authority expressly reserved the right to enter and make repairs on the premises and was therefore not entirely out of possession; and also that, in any event, even an out of possession landlord can be held culpable for a structural defect such as the pit cover in question. She submits the expert affirmation of Professional Engineer Harold Krongelb, who measured a three-inch wide by one-inch deep gap between the cover and its frame, and opined that this gap, in combination with the 14-inch height of the bottom-most riser of the airstairs, and the shakiness of the airstairs, which combined to create a trap-like condition at a location where pedestrians were likely to be distracted. Krongelb also refuted Mazzeo's [*3]conclusions, stating that the latter's blanket statements that the fuel cover and stairs were in compliance with all applicable regulations is non-specific and conclusory, because he fails to identify the applicable regulations. He also notes that Mazzeo never inspected the fuel cover in person, as Krongelb did.

Plaintiff also insists that the Airline Deregulation Act primarily preempts economic regulations or challenges to operational decisions, but not general premises liability claims, and asserts that maintenance of permanent airport infrastructure is not a service related to airline rates, routes or operations. Plaintiff also points to the failure by Allied Aviation Services, who was retained to perform pit maintenance services, to produce any records related to the maintenance of the pit in question, and that there remains a question of fact whether the subject pit was no longer operational at the time of the accident, and therefore had no substantial function for the provision of airline services. She argues that Delta's failure to produce any records related to the pit cover's inspection and maintenance is evidence of outrageous neglect sufficient to defeat federal preemption.

The proponent of a summary judgment motion has the burden of submitting evidence in admissible form demonstrating the absence of any triable issues of fact and establishing entitlement to judgment as a matter of law. Giuffrida v Citibank Corp., 100 NY2d 72 (2003); Alvarez v Prospect Hosp., 68 NY2d 320 (1986); Winegrad v New York University Medical Center, 64 NY2d 851 (1985). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. Winegrad, 64 NY2d at 853. "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to rebut the movants claims and establish that triable issues of fact exist. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).

Turning firstly to the branch of Port Authority's motion seeking summary judgment dismissal of plaintiff's claims on the basis that it is an out-of-possession landlord, it is well-established that liability for a dangerous condition on property is predicated upon ownership, occupancy, control, or special use of property. See Millman v. Citibank, N.A., 216 AD2d 278 (2d Dept. 1995); also see Gilbert Props., Inc. v. City of New York, 33 AD2d 175, 178 (1st Dept. 1969), aff'd, 27 NY2d 594 (1970). An out-of-possession landlord is generally not liable for negligence with respect to the condition of the demised premises unless it (1) is contractually obligated to make repairs or maintain the premises or (2) has a contractual right to reenter, inspect and make needed repairs and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision. Padilla v. Holrod Assocs. LLC, 215 AD3d 573, 573 (1st Dept. 2023); Deebs v. Rich-Mar Realty Assocs., 248 AD2d 185, 185 (1s Dept. 1998); Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 566 (1987). Contractual language securing a landlord's right to enter the premises at all reasonable hours to make repairs is sufficient to establish that landlord's continuing obligation to maintain the premises in safe condition. Alnashmi v. Certified Analytical Grp., Inc., 89 AD3d 10, 16 (2d Dept. 2011); Appel v. Muller, 262 NY 278, 283 (1933).

Upon review and the analysis of statutory authority, relevant case law, and the papers submitted, this Court determines that defendant Port Authority has met its prima facie burden to demonstrate entitlement to dismissal of plaintiff's claims against Port Authority. At the outset, it must be noted that the Court does not accept Port Authority's contention that, as an out-of-possession landlord, it cannot incur liability here, since the lease agreement explicitly reserves Port Authority's right to enter upon the premises at reasonable hours to make repairs (see[*4]NYSCEF Doc 64 at pp.9-11). Such language has been heretofore deemed a sufficient reservation of control to attach liability for certain defects on the premises (Appel v. Muller, 262 NY at 283). However, the plaintiff's bill of particulars (NYSCEF Doc 59) fails to allege that the purported condition was a significant structural defect in violation of any particular statutory safety provision, as is necessary to sustain her cause of action against an out-of-possession landlord under the two-prong test enunciated in Padilla (215 AD3d at 573.). In rebuttal, plaintiff failed to raise an issue of fact as to whether the fuel pit cover constituted a significant structural defect, and that such defect was statutorily prohibited. Therefore, that branch of defendant Port Authority's motion seeking dismissal of plaintiff's claims against that defendant, only, is GRANTED, and plaintiff's complaint is hereby dismissed insofar as it alleges that defendant Port Authority is liable for her injuries.

Turning to that branch of the instant motion addressing defendant Delta's liability, Section 1305(a)(1) of the Airline Deregulation Act of 1978 expressly preempts the States from enacting or enforcing any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, (1992). The Second Circuit of the United States Court of Appeals has since held that Congress intended the Federal Aviation Act, as amended by the Airline Deregulation Act, to occupy the field of air safety, and that state laws that conflict with the FAA or sufficiently interfere with federal regulation of air safety are thus preempted. Fawemimo v. Am. Airlines, Inc., 751 F. App'x 16, 19 (2d Cir. 2018). The United States Supreme Court has interpreted the statutory term "related to" broadly, holding the statute supersedes any state law "if it has a connection with, or reference to" to airline "rates, routes, or services[.]" Morales, 504 U.S. at 384. However, the federal code has also instituted a "savings clause" codified under 49 U.S.C.App. § 1506, which pre-dates the Airline Deregulation Act, and provides that "[n]othing ... in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies." Id. at 379; 49 U.S.C.App. § 1506.

In Rombom v. United Air Lines, Inc., the United States District Court of New York's Southern District articulated a three-part test to guide the adjudication of preemption defenses under the Airline Deregulation Act, prescribing that the court must: 1) define whether the activity at issue in the claim is an airline service; 2) determine whether the claim affects the airline service directly or tenuously, remotely, or peripherally; and 3) determine whether the underlying tortious conduct was reasonably necessary to the provision of the service. Rombom v. United Air Lines, Inc., 867 F. Supp. 214, 222 (S.D.NY 1994). The primary function of the third prong is to exempt from preemption airline actions classifiable as "outrageous or unreasonable." Lozada v. Delta Airlines, Inc., 2014 WL 2738529, at *4 (S.D.NY 2014), citing Rombom, 867 F. Supp. at 223. In Spinrad v. Comair, Inc., New York's Eastern District court, applying the Rombom test, ruled that the relevant statutory and regulatory framework of the Airline Deregulation Act principally concerns the airworthiness of transport planes and the in-flight conduct of airplane crew and passengers, and that the savings clause permitted plaintiffs to bring state-law claims essentially unrelated to in-flight aircraft operations or aircraft design. Spinrad v. Comair, Inc., 825 F. Supp. 2d 397, 411 (E.D.NY 2011); also see Donkor v. Brit. Airways Corp., 62 F. Supp. 2d 963, 972 (E.D.NY 1999). The Spinrad court ultimately preserved that plaintiff's claim that the defendant airline negligently positioned and staffed its airstairs and proximately caused plaintiff's ensuing injuries, holding that the airstairs were not sufficiently related to the [*5]provision of airline service to warrant preemption. Conversely, in Segarra v. Delta Airlines, Inc., the Southern District court determined that a plaintiff's claim that the positioning of a jet bridge was misaligned with the plane directly implicated a matter reasonably necessary to the provision of airline service, as the boarding of passengers concerns the central purpose of commercial air flight. Segarra v. Delta Airlines, Inc., 2020 WL 3127879, at *4 (S.D.NY 2020). That decision more closely adhered to Second Circuit authority holding that services well beyond the ambit of airline safety, including the provision of food, water, electricity, and restrooms to passengers, may fall within the penumbra of federal preemption. Id. at *4; citing to Air Transp. Ass'n of Am., Inc. v. Cuomo, 520 F.3d 218, 223 (2d Cir. 2008).

Turning to the circumstances of this case, the expert affirmation of Daniel P. Mazzeo asserted that the function of the airstairs is primarily to provide safe access to board and leave an aircraft, and helps to keep passengers from being exposed to conditions such as rain, snow, jet blast and noise; and that the devices are not fixed but are intentionally movable to accommodate different types of aircraft, and therefore produce some bounce or movement as persons ascend or descend (NYSCEF Doc 65 at p.5). Mazzeo also describes the pit cover is a component of the in-ground hydrant that it is used to provide fuel to commercial airplanes, and states that the pit cover in question features three hinged hatches that raise and lower, and which are marked with red and yellow paint "to draw attention to them" (NYSCEF Doc 65 at p.8). Mazzeo further emphasizes that the hatches must be at a distance from their frame to provide the necessary clearance for their opening and closing (Id.). Although cognizant of Spinrad's admonition that federal preemption under the Airline Deregulation Act only applies where a claim directly implicates air safety, this Court finds the reasoning set forth in Segarra to be more persuasive, and determines that activities related to the embarking and deplaning of passengers are not only directly related to the provision of an airline service, but are reasonably necessary to that service, thus surpassing all three steps of the Rombom test and qualifying for preemption under the Airline Deregulation Act (Segarra, 2020 WL 3127879, at *4). Additionally, as the provision of fuel to passenger planes is fundamental to their functioning, it must also follow that the fuel pit cover relates to a matter reasonably necessary to the provision of airline service, and cannot be the subject of a state-enacted or common law cause of action unless the concerned conduct is outrageous or unreasonable (see Lozada, 2014 WL 2738529 at *4).

In rebuttal, plaintiff insisted, albeit unconvincingly, that the absence of any records related to the pit cover's inspection and maintenance is evidence of outrageous neglect sufficient to defeat preemption. It must also be noted that plaintiff's expert, Krongelb, failed to refute Mazzeo's assertion that the gap between the fuel cover and the frame was necessary to its function, nor did he cite any violations of federal statute pertaining to the condition or design of either the fuel cover or the airstairs. Altogether, plaintiff has failed to raise a material issue of triable fact precluding summary judgment in favor of the movant. Consequently, that branch of defendant's summary judgment motion seeking dismissal of plaintiff's claims against Delta is GRANTED. Further, in view of the foregoing, that branch of the instant motion seeking leave to amend defendant's answer is DENIED as moot.

The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by the parties was not addressed by the Court, it is hereby denied.

Accordingly, defendant's summary judgment motion is GRANTED, solely to the extent of dismissing plaintiff's claims against defendants Port Authority and Delta.

Defendant Port Authority is directed to serve a copy of this decision and order with notice of entry, upon all parties within thirty (30) days of entry, and to upload proof of service onto the NYSCEF system.

This constitutes the decision and order of this Court.

Dated: May 19, 2026

Bronx, New York

Hon. Kim Adair Wilson, J.S.C.