The opinion
Alba v Port Auth. of N.Y. & N.J.
2024 NY Slip Op 32353(U)
July 9, 2024
Supreme Court, New York County
Docket Number: Index No.: 158849/2017
Judge: James G. Clynes
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
[FILED: NEW YORK COUNTY CLERK 07/10/2024 04:01 P~ INDEX NO. 158849/2017
NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 07/10/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JAMES G. CLYNES PART 22M
Justice
--------------------------------------------------------------------------------X INDEX NO. 158849/2017
PAUL ALBA,
MOTION DATE 07/11/2023
Plaintiff,
MOTION SEQ. NO. 004
-v-
THE PORT AUTHORITY OF NEW YORK AND NEW
JERSEY. NEW JERSEY TRANSIT CORP., JOHN DOE, DECISION + ORDER ON
JANE DOE MOTION
Defendant.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 004) 81, 82, 83, 84, 85,
86, 87, 88. 89, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105
were read on this motion to/for JUDGMENT-SUMMARY
Upon the foregoing documents, it is ordered that the defendant Port Authority's motion
for summary judgment dismissing the complaint pursuant to CPLR 3212 is granted.
In this action, plaintiff Paul Alba ("Alba") seeks recovery for personal injuries allegedly
sustained on March 13, 2017, when he disembarked a New Jersey Transit bus upon its arrival at
the Port Authority Bus Terminal in New York County. Alba alleges that his injuries are a result
of the defendants' negligence. Defendant Port Authority of New York and New Jersey ("Port
Authority") now moves for summary judgment pursuant to CPLR 3212 seeking dismissal of the
complaint.
Background and Facts
At approximately 7:30 a.m. on March 13, 2017, Alba boarded defendant New Jersey
Transit Corp. 's 164 Express bus in Glen Rock, New Jersey to the Port Authority Bus Terminal
(Malysa Affirmation lNYSCEF Doc. No. 82] Ex. C [Alba Deposition Transcript] [NYSCEF
Doc. No. 85] at 31: 16-25, 32:3-5). At approximately 8:30 a.m., the bus arrived inside Port
Authority Level 4 (id at 4:12-15, 33:15-16). The roadway on which the buses travel in the
terminal is adjacent to a narrow, sidewalk-like platfonn, and there arc buses that pass on the left
side (Napoli Affirmation NYSCEF Doc. No. 97] Ex. E [Borden Deposition Transcript]
fNYSCEF Doc. No. 1021at27:22-25, 28:2-6. 29:23-25, 30:2-11). The buses gradually move
158849(2017 ALBA, PAUL vs. PORT AUTHORITY OF NEW Page 1of4
Motion No. 004
[* 1] 1 of 4
[FILED: NEW YORK COUNTY CLERK 07/10/2024 04:01 P~ INDEX NO. 158849/2017
NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 07/10/2024
forward toward the end of the platform to allow the buses behind them to do the same at the
discretion of the platform supervisor who directs the buses (id at 24: 22-25, 25 :2-11, 14-25). The
drop-off area is described as "a sidewalk that's got a series of stairs or escalators on the right
side" (Alba Tr., 34: 1-2). The platform supervisor is a New Jersey Transit employee and no
employee of the Port Authority is involved in the process of queuing buses at the platform
[Borden Tr. 26: 11-22).
Alba testified that after he descended the three to four stairs of the bus to exit, he
"stepped off the bus. and the next thing [he] knew, [his] left foot was caught between the
roadway and curb and the bus step" (Alba Tr. 37:22-24, 38:7-11). He testified that his left foot
flatly went in between the gap between the bus and the curb, and his right foot stepped forward
onto the sidewalk (id. at 92: 1-25, 93: I). When he "tried to pull it out, l he] fell forward and
turned and hit into the low wall of the escalator" (id at 38:11-13). He further stated that he
"stepped out of the bus thinking lhe] was on the sidewalk", and that the cause of the misstep was
"the distance between the bus and the curb" which was "between eight to ten inches" (id. at 39:3-
4, 13-15; 41 :21-23). He testified that nothing prevented him from waiting until he could see the
curb outside before stepping down, nor did he recall using the handrail to assist him as he was
exiting (id at 48:5- I 7). Additionally, he testified that "the sidewalk wasn't there when [he]
stepped off the bus" and that he did not sec it prior to stepping off the bus (id. at 88:17-21, 89:1-
3).
No one in front of plaintiff had difficulty exiting the bus, nor did he hear anyone
complain about the distance between the curb and bus prior to his fall (id at 42:20-25, 43: 1).
Alba also testified that he was familiar with the drop-off area at Port Authority, as he has had the
same commute since 2012 (id. at 34:12-13). Alba could not distinguish the distance between the
bus and the curb on the date of the incident from other times he traveled to Port Authority and
did not have any difficulty exiting a New Jersey Transit bus onto the curb (id at 44:22-25; 45: 1-
5).
A General Maintenance Supervisor for the Port Authority, Donald Suarez, testified that
he is in charge of "the whole building for the structural aspect" of the Port Authority Bus
Terminal, meaning "anything having to do with the structural integrity of the building",
including areas where passengers are dropped off and picked up by buses (Napoli Aff. Ex. D
[Suarez Deposition Transcript] [NYSCEF Doc. No. 101] 6:5-21, 7:2-8, 9:14-19). Although he
158849/2017 ALBA, PAUL vs. PORT AUTHORITY OF NEW Page 2 of 4
Motion No. 004
[* 2] 2 of 4
[FILED: NEW YORK COUNTY CLERK 07/10/2024 04:01 P~ INDEX NO. 158849/2017
NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 07/10/2024
did not hold that position at the time of the incident, Suarez testified that his duties involve
"ensurl ing]] that the staff and supervisors, specifically a structural specialist, inspect the areas in
the terminals", including "where the passengers would embark from a bus and step on a sidewalk
or step on a roadway" (id. at 8:4-11, 9:4-6, 20-24, 10:5-9).
Discussion
New York courts have long held that" ... New York landowners owe people on their
property a duty of reasonable care under the circumstances to maintain their property in a safe
condition". Jane Doe v Turnmi// LLC, 193 AD3d 618, 618, (1st Dept 2021) quoting Maheshwari
v City ofNew York, 2 NY3d 288, 294 ([2004])[additional citations omitted]. "Where ... liability
is premised upon a dangerous premises condition, a defendant may be held liable only when it
either created the dangerous condition or failed to remedy it despite having actual or constructive
notice thereof." Coon v WFP Tower B Co. LP., 220 AD3d 407, 408 (1st Dept 2023) (internal
citations omitted): Davis v Brookfield Props. Mgt.. LLC, 220 AD3d 527 (1 51 Dept 2023);
Santana-Lizardo v New York City Tr. Auth.. 186 A.D.3d 1176 (1st Dept 2020)). "To constitute
constructive notice, a defect must be visible, apparent, and exist for a sufficient length of time
prior to an accident to permit the owner or its agents to discover and remedy it" (Gordon v
American Museum of Natural History. 67 NY2d 83 6, 83 7 (1986).
The moving party's failure to make a prima facic showing requires a denial of the motion,
regardless of the sufficiency of the opposing papers. Alvarez v Prospect Hosp .. 68 NY2d 320,
324 (1986). If the moving party meets its prima facie burden, the burden shifts to the non-
moving party to furnish evidence in admissible form sufficient to raise a material issue of fact
(id.).
Here, the Port Authority has established through the deposition testimony of plain ti ff and
other witnesses that it did not cause or contribute to the allegedly dangerous condition - which
plaintiff has identified only as the allegedly excessive distance between the bus and the curb.
While a common carrier is obligated to provide its passengers with a safe place to disembark,
Bruno v Port Auth. of N. Y & NJ, 157 AD3d 444 (1st Dept 2018), the record demonstrates that
the Port Authority was not responsible for regulating the buses' stopping distance from the curb.
Rather, as noted above, the maintenance supervisor's testimony establishes that it was only
responsible for remedying structural defects in the drop off area. Plaintiff does not allege that
there were any physical defects in the curb or surrounding area. Compare, Bruno v Port Auth. <~l
158849/2017 ALBA, PAUL vs. PORT AUTHORITY OF NEW Page 3 of 4
Motion No. 004
[* 3] 3 of 4
[FILED: NEW YORK COUNTY CLERK 07/10/2024 04:01 P~ INDEX NO. 158849/2017
NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 07/10/2024
NY & NJ, 2016 NY Slip Op 30721 *3 (Sup Ct, NY County 2016) (question of fact as to
whether Port Authority sufficiently repaired hole in sidewalk that caused passenger to fall).
Accordingly, plaintiff's argument that the accident was attributable to defendant's failure to
inspect is without merit.
Accordingly, it is hereby
ORDERED that defendant Port Authority of New York and New Jersey's motion for
summary judgment pursuant to CPLR 3212 is granted, and the complaint is severed and
dismissed as against that party; and it is further
ORDERED that within 30 days of entry, defendant Port Authority shall serve a copy of
this Decision and Order upon the other parties with Notice of Entry, and it further
ORDERED that the remainder of the action shall continue: and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.
7/912024
DATE
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED D DENIED GRANTED IN PART D OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT D REFERENCE
158849/2017 ALBA, PAUL vs. PORT AUTHORITY OF NEW Page 4 of4
Motion No. 004
4 of 4
[* 4]