The opinion of the court was delivered by: Dora L. Irizarry, District Judge
Plaintiff Len C. Pacitti filed this suit on July 14, 2004 in New York Supreme Court, Queens County, against defendants Delta Air Lines, Inc. ("Delta") and Argenbright Security, Inc. ("Argenbright") to recover five million dollars in damages for an injury he sustained at John F. Kennedy International Airport ("JFK") in Queens, New York on July 18, 2001 just prior to boarding a flight to Paris, France. The case was removed to this court on July 26, 2004 pursuant to 28 U.S.C. §§ 1441 and 1332. Delta and Argenbright now move to dismiss the complaint on the grounds that it is untimely under the treaty popularly known as the Warsaw Convention,*fn1 and Delta moves for summary judgment asserting cross-claims against Argenbright for defense and indemnification. For the reasons set forth below, the court denies defendants' dismissal motions because plaintiff was not injured "in the course of any of the operations of embarking or disembarking" an international flight within the meaning of the Warsaw Convention, and therefore his complaint is not subject to the Convention's two-year limitations period. The court further finds that, pursuant to the contract between the parties, Argenbright must defend plaintiff's claims, and indemnify and hold harmless Delta for all attorneys' fees, costs, and damages associated with such defense.
The following facts are taken from the depositions, interrogatories, affidavits, and exhibits submitted by the parties. Plaintiff purchased a ticket from Delta to fly from Sarasota, Florida to Milan, Italy, with connections in Atlanta and at JFK. After leaving Sarasota on the morning of July 18, 2001, plaintiff was delayed for two hours in Atlanta and arrived at JFK at approximately 6:00 p.m., having already missed his connecting flight to Milan. As plaintiff's plane stopped outside the terminal at JFK and the passengers onboard began to get up and retrieve their luggage, the pilot announced, "I'm not going to make everyone sit down, but I need to pull [the plane] up, so please hold on." (Pacitti Dep. 13.) After the plane pulled forward approximately nine inches, one of the passengers dropped a piece of carry-on luggage on plaintiff's right knee, causing him some minor pain and discomfort. Once inside the terminal, plaintiff spoke with a Delta representative who informed him that although his scheduled flight to Milan had already departed, plaintiff could board a flight to Paris, France, scheduled to depart at 6:45 p.m. from Gate 9, and from Paris, he could continue on to Milan. Due to the discomfort in his knee and the distance between his arrival and departure gates, plaintiff asked to be transported to Gate 9 in a cart. After being told that no carts were then available, plaintiff agreed to be taken to Gate 9 in a wheelchair.
An Argenbright employee, identified by the parties as Lexan Mercurius, appeared at the Delta counter with a wheelchair to take plaintiff to Gate 9. Plaintiff took his seat in the wheelchair and placed his carry-on luggage on his lap, while Ms. Mercurius began pushing the wheelchair towards Gate 9. Other than briefly greeting Ms. Mercurius, plaintiff did not speak with her while he was seated in the wheelchair. At approximately 6:20 p.m., the pair approached a ramp located between Gates 3 and 4 and approximately ninety to ninety-five yards away from Gate 9. As Ms. Mercurius attempted to push the wheelchair up the ramp, plaintiff was thrown from the wheelchair and onto the floor, landing on all fours and injuring his left knee.
After the fall, plaintiff declined Ms. Mercurius's invitation to return to the wheelchair, instead deciding to walk the rest of the way to his departure gate. He asked Ms. Mercurius to accompany him to the Delta counter at Gate 9 so that they could fill out an incident report. At the counter, plaintiff spoke with Mr. Robb, who filled out an incident report, which indicates that plaintiff "fell out of wheelchair while being pushed up [a] ramp" located on the right side of the terminal between Gate 3 and Gate 4. (Pl. Opp., Ex. E.) Plaintiff then boarded the flight to Paris, and continued without incident to Milan, arriving on July 19, 2001.
According to plaintiff, the whole chain of events from when he arrived at JFK until he boarded the flight to Paris occurred over no more than twenty minutes. Plaintiff's arrival and departure gates were both located in a "sterile terminal area," reserved for ticketed passengers who had already cleared security. It was Delta's policy at the time of the accident to allow its passengers to board their flights until approximately ten minutes prior to departure. The accident occurred within Terminal 3 at JFK, which serviced both domestic and international flights and was used by Delta, as well as by a number of other airlines. At the time of the incident, there was a restaurant on a mezzanine level, accessible by a staircase approximately ten feet away from where the incident occurred. Although other vendors have operated in the area nearby where plaintiff was injured subsequent to 2001, it is unclear whether any were in operation at the time of the incident.
At the time of the incident, Argenbright and Delta were parties to a contract, entitled "Master Agreement for Skycap Services" (the "Skycap Agreement"), wherein Argenbright agreed to "provide wheelchair and other special assistance to Delta's customers, between all gates and ticket counters . . . and connecting flights." (Skycap Agreement 2.) According to Norman Michael Robb, who in 2001 was a passenger service agent for Delta, Delta would contact Argenbright after a passenger requested wheelchair service, and an Argenbright employee would transport the passenger to their desired destination. Section 8 of the Skycap Agreement further provided that:
To the fullest extent permitted by law, [Argenbright] shall release, indemnify, defend and hold harmless Delta . . . from and against any and all claims, damages, losses, fines, civil penalties, liabilities, judgments, costs and expenses of any kind or nature whatsoever . . . which in any away arise out of or result from any act(s) or omission(s) by [Argenbright] . . . in the performance or nonperformance of services or other obligations under this Agreement . . . including . . . injury to or death of any person . . . . This Section shall apply regardless of whether or not the . . . injury complained of arises out of or relates to the negligence . . . of, or was caused in part by, [Delta]. However, nothing contained in this Section shall be construed as a release or indemnity by [Argenbright] of [Delta] from or against any loss, liability or claim to the extent arising from the gross negligence or willful misconduct of [Delta]. (Skycap Agreement § 8.) Section 7.1 of the Skycap Agreement stated that Argenbright was obligated to carry its own insurance, and to list Delta as an additional insured to the extent required by Argenbright's indemnity obligations.
A. Summary Judgment Standard
Although defendants ostensibly moved to dismiss plaintiff's complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, all parties have filed numerous depositions, affidavits, interrogatories, and exhibits in connection with the pending motions. "If, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d). Accordingly, defendants' Rule 12(b) motions are converted into motions for summary judgment under Rule 56.
Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The court must view all facts in the light most favorable to the nonmoving party, but "only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 127 S.Ct. 1769, 1776 (2007). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Id. A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmoving party, however, may not rely on "[c]onclusory allegations, conjecture, and speculation," Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998), but must affirmatively "set out specific facts showing a genuine issue for trial," Fed. R. Civ. P. 56(e). "When no rational jury could find in favor of the ...