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HRRV in the Courtroom
2011 Archive

Dashanie Martinez Dela Rosa, an Infant, by her mother and natural guardian, Myrla Dela Rosa, and Myrla Dela Rosa, Individually v. 610-620 West 141 LLC, New Matthews Avenue LLC and Bernard Putter Supreme/Bronx
Index No.: 350517/2007
December 23, 2011

Claims Against Landloard in Lead-Based Paint Claim Dismissed

Summary judgment was recently granted to the defendants in this action, which involved claims by the plaintiffs that the infant-plaintiff was exposed to lead-based paint, and sustained elevated blood lead levels and resulting cognitive defects, between October of 2006 and April of 2007, at two locations.

Defendant 610-620 West 141 LLC owned the property located at 610 West 141st Street beginning in March of 2006. While the plaintiffs had previously lived in that building, they did not live there at the time that this defendant purchased the building, or subsequent thereto. Rather, the plaintiffs lived in the co-defendants building, but claimed they visited an apartment occupied by the infant-plaintiff’s aunt, Ruddy Dela Rosa, six days per week, for an estimated 72 hours per week.

610-620 West 141 LLC argued that it is not liable under Local Law One because Dashanie did not reside in the building after March of 2006, when it purchased that property. The Court of Appeals previously held that “where a landlord has notice that a child under the specific age is residing in an apartment, Local Law 1 provides for constructive notice of the hazardous lead condition.” Juarez v. Wavecrest Mgmt. Team, 88 N.Y.2d at 647. The term “resides” had not been defined by the Court of Appeals, nor is there any definition of “resides” within Local Law One.

Justice Robert E. Torres, of the Supreme Court, Bronx County, discussed several prior cases with similar facts in the decision, including a very recent Second Department Case, Michaud v. Lefferts 750, LLC, 929 N.Y.S.2d 612 (2d Dept 2011). In Michaud, there were a very similar set of facts and the Second Department concluded that the duty of a landlord under Local Law One is only triggered when it is shown that a child lives in the multiple dwelling unit. Thus, Justice Torres applied that reasoning and concluded that in this case, where Dashanie was a frequent visitor of the building, but did not reside in the apartment during the time that the defendant owned the property, no duty arises under Local Law One. Therefore, all claims against the defendant 610-620 West 141 LLC were dismissed.

610-620 West 141 LLC was represented by Tara C. Fappiano on the motion.

Bloch v. Antonucci
Supreme Court, Rockland County
Index No: 3201/11
November 14, 2011

Hockey Referee’s Claims Against Rink Dismissed

James Bloch commenced an action pro se, asserting various allegations relating to the manner in which the defendants allegedly obstructed his ability to work as a hockey referee at the Palisades Center Ice Rink.

The complaint set forth intentional tort and negligence causes of action, including defamation, intentional and malicious interference with a contractual relationship, false arrest, intentional infliction of emotional distress, and negligent retention, supervision and training of an employee. The plaintiff also asserted a separate and distinct cause of action for punitive damages.

In lieu of serving an answer, HRRV moved on behalf of the defendants to dismiss the complaint. At the outset, the defendants argued that the plaintiff had failed to properly serve three of the four defendants. With respect to the remaining defendant, the defendants argued that the complaint must be dismissed pursuant to New York Civil Practice Law and Rules §3211, as it was filled with nothing more than conclusory allegations and failed to state legally cognizable causes of action. Additionally, the complaint lacked the requisite specificity pursuant to New York Civil Practice Law and Rules §§3013 and 3016(a).

Justice Victor J. Alfieri, Jr., granted the defendants’ motion to dismiss in its entirety, finding that the plaintiff had failed to obtain jurisdiction over three of the defendants. The Court held that the plaintiff’s allegations of intentional and malicious interference with a contractual relationship, false arrest and intentional infliction of emotional distress, failed to state viable causes of action. Additionally, the Court determined that the plaintiff’s first and second causes of action for defamation and intentional and malicious interference with a contractual relationship, failed to comply with the pleading requirements set forth in CPLR §§3013 and 3016(a), in that the Verified Complaint did not set forth any details whatsoever concerning the alleged actions, such as when, where or the manner in which they occurred. Since no viable causes of action remained, the plaintiff’s claim for punitive damages was also dismissed, as a claim for punitive damages is not sustainable as a separate cause of action.

The defendants were represented by Carla Varriale and Lindsay R. Kaplow.

Huang v. Spyglass Development, LLC
Supreme Court, Kings County
Index Number 31724/08
November 3, 2011

Judge Grants Summary Judgment to Contractor in Labor Law Action

The Plaintiff, Qiong Fang Huang, was an employee of an electrical contractor who fell from a ladder while working at a construction site on August 12, 2008. Mandarin Enterprises II, Inc. ("Mandarin") was a sub-contractor retained by Spyglass Development, LLC, ("Spyglass") the owner of the subject premises where construction was performed, to perform work at the job site. The plaintiff alleged violations of Labor Law §§ 200, 240, and 241(6).

Justice Schmidt, sitting in Supreme Court, Kings County, granted summary judgment in favor of Mandarin upon hearing argument from all of the parties. Mandarin argued based upon the evidence in the record, that it was not the owner of the premises, nor was it the general contractor. Likewise, Mandarin did not direct, control or supervise the plaintiff's work. Most importantly, the record demonstrated that Mandarin did not commence work at the job site until December of 2008, approximately five months after the date of loss. As such, the Court dismissed all of plaintiff's Labor Law claims asserted against Mandarin.

Likewise, the Court granted the portion of Mandarin's motion for summary judgment, dismissing Spyglass' third third-party action against Mandarin, seeking contractual and common law indemnification and contribution from Mandarin. The Court determined that, based upon the language of the contract between the parties, Mandarin did not agree to coordinate the various trades at the work site nor control the work of any of the various contractors prior to the alleged accident, and had no obligation to indemnify Spyglass, having commenced work at the job site five months after the alleged accident.

The defendant was represented by Tara C. Fappiano and Gregg Scharaga.

Eva Alfonsina Reyes v. One More Time Realty Corp.
Supreme Court, Bronx County
Index No. 309292/10
October 25, 2011

Plaintiff Eva Alfonsina Reyes allegedly sustained injuries when she tripped and fell due to a defective sidewalk. She alleged that she was walking on Evergreen Avenue when she tripped in a hole in the sidewalk that was located in front of property owned by One More Time Realty Corp. ("One More Time"). The plaintiff argued that One Time was negligent in maintaining and repairing the portion of the sidewalk on which she fell, and that it caused or created the defective condition.

Before engaging in discovery, HRRV moved for summary judgment, on the basis that plaintiff's 50-h hearing testimony established that she fell in front of a nearby parking lot, and not in front of the property owned by One More Time.

Justice Larry S. Schachner granted One More Time's motion for summary judgment, holding that One More Time met its prima facie burden in establishing that it did not own, operate, or control the sidewalk where plaintiff claimed to have fallen. One More Time also provided sufficient evidence to demonstrate that it did not create or cause a defective condition in the sidewalk. The Court held that plaintiff's opposition failed to raise a question of fact to defeat the motion.

Tara C. Fappiano represented One More Time Realty Corp.

Christine Palmer v. Prima Properties, Inc.
Supreme Court, Westchester County
Index Number 21932/10
October 4, 2011

Judge Favors Property Owner in Suit Over Fall on Stairs

Justice Sam D. Walker, sitting in Supreme Court, Westchester County, recently granted summary judgment in favor of a property owner where the plaintiff alleged that she was injured after a fall on interior stairs inside the building owned by the defendant, located in Mount Vernon, New York.

The plaintiff testified that she was at the building to visit a friend who lived there. She arrived at the building and climbed the four steps to the landing in front of her friend's apartment. She had to walk around several young people who were sitting on the steps. The plaintiff knocked for five minutes on the door of her friend's apartment, found her friend was not home, and turned to descend the same stairs. The plaintiff stated that the children were no longer sitting on the stairs. She stepped with one foot, and slipped and fell on the first step. When asked about the cause of her fall, the plaintiff stated there was a mixture of liquid, perhaps water and juice, on the step. It had not been on the stairs previously. She also claimed that there was no handrail and that had there been a handrail, she might have balanced herself, thereby preventing her fall.

The defendant argued that the plaintiff failed to demonstrate that the missing handrail was a structural defective, or that the lack of handrail was the proximate cause of the accident. The defendant also argued that given the five minute passage of time between when the plaintiff ascended the stairs, and there was no liquid, and the time of her fall, the defendant could not have had constructive notice of that alleged dangerous condition. Justice Walker agreed, citing the lack of an expert affidavit to demonstrate the existence of a structural defect. The Court concluded that the defendant did not create a dangerous condition at the premises, nor did it have any actual or constructive notice of a dangerous condition.

The defendant was represented by Tara C. Fappiano.

Raymond Perez v. The City of New York and Sterling Mets, L.P.
Supreme Court, Queens County
Index Number 7393/09
October 3, 2011

Court Finds That Stairs At Shea Stadium Were Not Dangerous

Justice Darrell L. Gavrin, sitting in the Supreme Court, Queens County, granted the motion for summary judgment to dismiss plaintiff Raymond Perez’s Verified Complaint in its entirety filed by City of New York and Sterling Mets, L.P.

The plaintiff alleged that he sustained personal injuries while attending a New York Mets baseball game at Shea Stadium on August 20, 2008. More specifically, he claimed that as he was descending stairs in the Mezzanine Level of the Stadium, he stepped aside to allow another patron to pass and as a result, his leg got caught in the space between the edge of the stair and the seat.

Following the completion of discovery, the defendants moved for summary judgment, arguing that there was no evidence of a dangerous or defective condition to the stairs. The defendants relied upon, among other things, the deposition testimony of Sterling Mets’ and the City’s respective Stadium Directors, each of whom testified that there were no prior complaints or accidents relating to the stairs, thus demonstrating lack of actual or constructive notice. Further, the plaintiff himself testified although the plaintiff had been to the Stadium on numerous prior occasions since he was a child, he was not aware of any prior complaints or accidents, but was aware of the Stadium configuration. The City and Sterling Mets also argued that they did not have a duty to warn the plaintiff of a readily observable condition that was open, obvious and easily discoverable by use of his own senses.

Justice Gavrin granted the City and Sterling’s motion for summary judgment. He Gavrin opined that the stairs and chairs at Shea Stadium were inherent to a sports stadium, complied with the New York City Building Code and other statutory requirements and that there was no evidence of any prior complaints or accidents on the subject stairs, despite the fact that millions had visited the Stadium. The Court held that the plaintiff’s action should be dismissed since a property owner has no duty to warn with regard to open and obvious conditions that could be easily observed by the use of one’s senses. Finally, Justice Gavrin stated that the “plaintiff having visited the stadium on many occasions, should have reasonably anticipated the edge of the stairs next to the seats . . . . [v]arying level of seating, columns of stairs and rows of chairs, have been the essence of stadiums since the first stadium was built in Olympia, Greece.”

Carla Varriale represented the City of New York and Sterling Mets, L.P.

In Matter of World Trade Center Bombing Litigation
17 NY3d 428
September 22, 2011

New York Court of Appeals Holds Port Authority Not Liable in 1993 World Trade Center Bombing Case

The Court of Appeals recently ruled that the Port Authority of New York and New Jersey, the owner of the World Trade Center, was not liable for damages in the 1993 terrorist bombing of the parking lot of the complex, which killed six people and injured about 1,000 others. The 4-3 ruling reversed a 2008 decision of the Appellate Division which upheld a jury verdict finding the Port Authority negligent because it failed to heed numerous warnings from security consultants that the complex's underground parking garage was vulnerable to attack. The Court of Appeals held that the Port Authority was entitled to the protection of governmental immunity and could not legally be deemed in the same position as a private landlord which failed to meet its security obligations to tenants. This, it reasoned, was because the Port Authority's decisions regarding police protection at the complex constituted an exercise of its governmental duties. While the Court of Appeals acknowledged the warnings given to the Port Authority regarding the potential risk of a car bomb in the garage, it also noted that the agency believed it was justified in concentrating its security measures elsewhere at the complex. The Court reasoned that the Port Authority had engaged in "the type of informed, policy-based decision-making that entitles a governmental agency to immunity." Judge Theodore Jones, writing for the majority, stated that "Governmental entities cannot be expected to be absolute, infallible guarantors of public safety." To encourage such entities to diligently investigate vulnerabilities and to put safeguards in place, he added, "they must be provided with the latitude to render those critical decisions without threat of legal repercussion."

Christopher Dubose v. W Associates
Supreme Court, Bronx County
Index No. 309789/2008
September 22, 2011

Court Dismisses Plaintiff’s Labor Law §240(1) Claim

The plaintiff commenced an action against HRRV clients, W Associates, LLC, Garden Homes Management Corporation and 37 Wall Street Construction, LLC, seeking a recovery for the personal injuries he sustained during the renovations being undertaken by the clients at a building in New York County. In the complaint, the plaintiff asserted claims of common law negligence and violation of Labor Law §§ 240(1) and 241(6).

At the time of the accident, the plaintiff, Christopher Dubose, had been walking across a room in which he had just finished spackling the ceiling, while standing on four foot high aluminum stilts. The plaintiff claimed that as he walked across the room he came crashing to the ground after the bottom of one of his stilts entered an uncovered hole in the floor.

At the close of discovery we moved to dismiss the plaintiff’s claims under Labor Law § 240(1), and plaintiff cross-moved for summary judgment under the sane statute. In a decision issued by Hon. Mary Ann Briganti-Hughes, Supreme Court, Bronx County, the court granted the defendants’ motion, summarily dismissing plaintiff’s Labor Law §240(1) claim.

In his motion, the plaintiff alleged that he was entitled to a recovery under Labor Law § 240(1) arguing that working on stilts was a protected elevated activity and that the accident occurred while he was still in the process of performing his work. In contrast, the attorneys at HRRV provided the court with evidence that the plaintiff had completed his assigned task when the incident occurred, as well as the prevailing case law to establish that the plaintiff was not entitled to a recovery under § 240(1) since the alleged hazard he encountered in the floor was not the hazard that originally brought about the need for the stilts - height required to reach the ceiling - thus it was unrelated to the protections set forth in Labor Law § 240(1). In particular, we provided the court with case law and facts to establish that the plaintiff’s claims were not in fact or in law sufficient to satisfy the requirements under Labor Law § 240(1)

Gail L. Ritzert and Amol N. Christian represented W Associates, LLC, Garden Homes Management Corporation and 37 Wall Street Construction, LLC

Matthew Staudt v. Sterling Mets, LP d/b/a New York Mets
Supreme Court, Queens County
Index Number 22408/09
August 31, 2011

Court Finds That Mets Did Not Owe a Duty to Provide Security Outside Shea Stadium or to Prevent Spontaneous Fight

Plaintiff alleged that on August 20, 2008 he sustained personal injuries during a fight with several unidentified individuals outside Shea Stadium (“the Stadium”), while leaving a New York Mets baseball game. Judge Kevin J. Kerrigan, sitting in Supreme Court, Queens County, granted a motion for summary judgment in favor of defendant Sterling Mets, L.P. (“Sterling”) and dismissed all claims against it.

In support of its summary judgment motion, Sterling argued that it did not owe a duty as it was not responsible for providing security outside the Stadium. Sterling relied upon the Stadium Lease Agreement between it and the City of New York, along with the deposition testimony and an affidavit of its Director of Stadium Operations and deposition testimony of event personnel. Further, Sterling argued that it did not owe a duty to plaintiff because the alleged assault by unidentified individuals was sudden, unexpected and not foreseeable. Plaintiff and several non-party witnesses all testified that the incident occurred suddenly and unexpectedly. Accordingly, Sterling did not foresee the assault, particularly given that it occurred outside the Stadium, in an area in which Sterling had no responsibility.

In opposition to Sterling’s motion, plaintiff claimed that Sterling owed a duty to secure the “stadium approach area” pursuant to the Stadium Lease Agreement. Plaintiff further alleged that Sterling breached its duty by failing to instruct the unidentified assailants to “stop at the gate.”

Judge Kerrigan granted Sterling’s motion for summary judgment, holding that Sterling met its burden of proof and demonstrated that it was not responsible for providing security outside the Stadium. Rather, it was the responsibility of the New York City Police Department to provide security outside the Stadium, including the walkways outside the turnstiles and the parking lot. The Court further held that the Stadium Lease Agreement granted the City the exclusive right to operate and control the parking lot outside of the Stadium. Finally, the Court held that plaintiff’s incident was unforeseeable and resulted from a spontaneous fight between two groups of indentified individuals, and as such, Sterling did not owe a duty to prevent such an assault.

Carla Varriale represented Sterling Mets, L.P.

Marrero v. The City of New York
Supreme Court, New York County
Index Number 105101/07
August 16, 2011

New York Court Rejects Mosh Pit Injury Claim

A New York court has rejected a concertgoer’s claim that his injuries (which included a (torn ACL and fractured tibia plateau requiring surgical repair) were caused by the failure of the concert promoter and its retained security contractors to provide adequate security at an outdoor general admission festival.

Jeffrey Marrero alleged that he was injured while attending Ozzfest 2006 at Randall's Island on July 29, 2006. Plaintiff claimed that while standing on the outskirts of a mosh pit (he was not able to move to any other location because of the crowd) he was kicked by someone engaged in moshing. Plaintiff claimed that Live Nation, the City of New York (whose tender was accepted by Live Nation) and several security companies retained by Live Nation (USI Strike Force and Concert Service Specialists) failed to provide adequate security and properly control the crowd. Among other things, plaintiff argued that the festival was overcrowded and Live Nation was obligated to prevent and/or deter moshing.

Plaintiff claimed that he was walking toward the main stage of the venue; and the closer he got to the stage, the thicker the crowd became.  During his progression to the main stage, he encountered a group of aggressive dancers, although he claimed that he had never before observed a mosh pit or moshing and, in fact, did not know what moshing was (at least prior to his being injured). Plaintiff claimed that he feared being struck by a dancer and, as such, took a few steps back and continued to watch the concert. Approximately three minutes later, he was shoved from behind, causing him to stumble forward into the mosh pit, and was then struck by a mosher.

Live Nation and the City moved for summary judgment seeking dismissal of plaintiff’s action on the grounds that neither owed plaintiff a duty of care since the he appreciated and assumed the risk of his injuries when he knowingly positioned himself among a crowd, immediately adjacent to a mosh pit, at Ozzfest, a general admission outdoor heavy metal festival. Live Nation also argued that it did not breach any duty it might have owed to plaintiff since it provided adequate security as a matter of law, and that in any event, plaintiff was injured as a result of the sudden and unexpected action of a third-party or third-parties over whom Live Nation had no control.

Hon. Eileen Rakower, sitting in Supreme Court, New York County, granted the motion by Live Nation and the City finding that there were no questions of fact demonstrating that either breached any duty of care they might have owed to plaintiff and dismissed the action in its entirety. Justice Rackower did not focus on the assumption of risk defense, but on the fact that there was no testimony and no evidence to establish that the dancing observed by the plaintiff was "violent" She noted that the evidence demonstrated that the event was not a "sold out" event and there was ample security. She also noted that security personnel testified that it was a "quiet" day and there were no problems.

Justice Rackower was unconvinced that there was any evidence to establish that the complained of conduct – moshing – rose to such a level that would have or should have alerted security personnel or warranted security personnel's intervention. She also found that there was no testimony to establish that the plaintiff was injured due to moshing – pointing out that the plaintiff testified that he was pushed from behind, fell into the aggressive dancers and was struck in the side by one of the dancers, but that the testimony was not clear as to whether the dancer struck him accidently or "slammed" into him while moshing.

Justice Rakower did not entertain the plaintiff’s overcrowding contention (which, arguably would have been defeated by plaintiff’s own testimony that he was able to escape from the allegedly overcrowded area immediately after his injury), pointing out that there were approximately 5,000 to 6,000 people at this event, substantially less than in prior years.

Plaintiff has filed a notice of appeal.

Steven H. Rosenfeld and Carmen A. Nicolaou represented Live Nation and the City of New York

Guevera v. Aer Lounge LLC
Supreme Court, Bronx County
Index No. Index No. 13570/05
June 2, 2011

HRRV Obtains Defense Verdict for Aer Club and Lounge

On Feb. 6, 2005, plaintiff Roland Guevara, who was in his late 20s, was injured when a decorative ficus tree fell on him while he was having drinks with friends at the Aer Club and Lounge in Manhattan's Meatpacking District. Guevara filed a lawsuit against the club, alleging it had failed to ensure that the chemically treated decoration - which stood roughly 10 feet tall - was properly secured in its place. The tree in question stood in a weighted vase, and its branches were attached to the club's ceiling. Guevara claimed that as he was speaking to an acquaintance, he suddenly felt something strike him on the back of the head, and did not see the tree falling. A friend who was with Guevara that night testified that he saw the tree in question sway back and forth roughly an hour before it fell on Guevara's head. The friend testified that he pointed the tree out to a woman he was speaking to, but did not alert the club's management.

The defense argued that the tree had been properly secured. The man who had been hired to install the decoration testified that the only way for the tree to fall was if someone had vigorously shaken or otherwise used sufficient amount of force to cause it to break.

As a result of the alleged accident, plaintiff claims to have suffered from a concussion and eventual diagnosis of traumatic brain injury. In addition he claims to have sustained bulging discs at the C5-6 and C6-7 levels. He was treated via physical and chiropractic therapy.

After deliberating for approximately two hours, the jury returned with a unanimous finding that Aer was not negligent.

Plaintiff filed a post trial motion for a new trial arguing that in communicating with the jurors, counsel learned that the term “negligent” was looked up by a juror on his PDA phone. Plaintiff did not submit any documentation to demonstrate this. The motion was denied.

Carmen A. Nicolaou was trial counsel for the defendant.

Ball v. MTV Networks On Campus, Inc.
U.S. District Court, Northern District of New York
7:08-cv-0944 (TJM)
May 23, 2011

Federal Court Dismisses Negligence Claim Finding No Breach of Duty

Plaintiff Malcomb Ball alleged that he sustained injuries while loading the ramp onto the trailer of a truck utilized in connection with a concert tour. Plaintiff was a concert tour truck driver employed by Upstaging Inc., assigned to work the mtvU 2006 Campus Invasion Tour, produced by Live Nation for MTV. Plaintiff’s job included transporting equipment throughout the course of the Tour. The State University of New York at Potsdam (“SUNY Potsdam”) was a stop on the tour. Plaintiff arrived at SUNY Potsdam on the morning of the concert. Four stagehands, all of whom were college students employed by Student Government Association of Potsdam (“SGA”), removed a metal ramp (among other concert-related equipment) from underneath the plaintiff’s trailer. After the concert ended, the process of loading the equipment back into the trucks began.

While one of the trucks was being loaded, plaintiff instructed three SGA stagehands to assist him in lifting a metal ramp off the ground and loading it on the rack located underneath a trailer. While they were walking with the ramp, plaintiff was giving instructions to one of the stagehands as to how to properly carry it. Because of space constraints, plaintiff instructed the stagehand to work his way toward the front of the ramp while holding on to it so it could be properly placed in the rack. Plaintiff also was working his way up to the front of the ramp. The stagehand let go of the ramp, causing it to tilt to one side. Plaintiff maneuvered himself in a position so he could properly raise the ramp. As plaintiff bent down to lift the ramp back up, he jerked it up. Before plaintiff was able to get the ramp to a comfortable carrying position, the stagehands on the other end of the ramp started walking toward plaintiff. During this process, plaintiff lost his footing, his knee twisted, and he fell. The ramp came down on plaintiff’s right knee causing him injury.

Plaintiff commenced suit against MTV and Live Nation claiming that each was negligent in failing to use reasonable care in hiring, retaining, employing and/or the assigning of trained and/or experienced personnel to assist in the loading of the concert equipment and in failing to properly supervise that personnel during the process of loading the equipment.

Among other things, plaintiff argued that MTV and Live Nation were obligated to provide professional stagehands to assist in the unloading and loading of the concert equipment; and that the use of arguably inexperienced college students constituted a breach of duty.

Senior U. S District Judge Thomas J. McAvoy, sitting in the U.S. District Court for the Northern District of New York, granted summary judgment for Live Nation and MTV, holding that “[a]ssuming, without deciding, that Defendants owed Plaintiff a duty of care,…they did not breach any such duty.” Rejecting plaintiff’s contention that the use of college students as stagehands supported a claim of negligence, Judge McAvoy noted that there was nothing in the record suggesting that the stagehands provided were not able-bodied or otherwise physically or mentally capable of maneuvering the equipment for purposes of unloading and loading it into the trucks. In finding that plaintiff could not establish a breach of duty as a matter of law, Judge McAvoy noted that there was insufficient evidence in the record upon which a fair-minded finder of fact could reasonably conclude that the defendants had reason to know that the use of students as stagehands was likely to result in injury to plaintiff or others.

Steven H. Rosenfeld and Carmen A. Nicolaou represented Live Nation and MTV.

Falzon v. Major League Baseball Enterprises, Inc., Sterling Mets, L.P., Ramon Castro and Louis Castillo
Supreme Court, New York County
Index: 110508/2010
April 27, 2011

Baseball Spectator’s Lawsuit Alleging Enhanced Dangers of Maple Bats Dismissed

A New York court rejected an injured spectator’s argument that his negligence lawsuit should proceed because he was struck by shards of a maple bat and the league and team knew that maple bats have been shown to break apart more readily than ash bats. In Falzon v. Major League Baseball Enterprises, Sterling Mets, L.P., Ramon Castro and Louis Castillo, James G. Falzon alleged that he was sitting in a box seat located along the third-base line at Shea Stadium when the barrel of an broken maple bat struck him in the face, causing serious personal injuries. Falzon has also sued the bat's manufacturer in a separate lawsuit, accusing it of producing an "inherently dangerous" bat.

Essentially, Falzon's lawsuits argue that MLB and the Mets failed to keep spectators "reasonably safe from hazards they had actual knowledge of, including the increased danger posed by shattering maple bats." He relied, in part, on a purported MLB-commissioned studies of the dangers presented by maple bats. Falzon also argued the players weren't careful enough in inspecting and maintaining the offending bat.

New York, however, is a “limited duty of care” state. This is a specialized duty of care that protects owners and operators of baseball stadiums from liability for spectator injuries caused by errant baseballs, bats and even promotional items that may enter the stands. The limited duty of care is satisfied when an owner or operator establishes that the requisite protected area was provided behind home plate (as it was in the Falzon case, although Falzon and his family conceded that they were not sitting in the protected area and that they did they request seats in the protected area). Moreover, announcements and the language on the back of the ticket to the subject baseball game warn spectators about the possibility of bats and bat fragments (maple or otherwise) entering the stands.

In an effort to avoid the monolithic limited duty of care, Mr. Falzon advanced several arguments, including the argument that alleged enhanced danger presented by shattering maple bats was not a risk he assumed. Mr. Falzon also contended that the screened area should not just be limited to the area behind home plate, as that standard was outmoded given the current state of play. He further argued that because of the way that maple bats shatter, a spectator does not have adequate time to react and therefore faces an enhanced risk of injury.

Justice Anil C. Singh, sitting in Supreme Court, New York County disagreed with these arguments and dismissed Mr. Falzon’s action against MLB, Sterling, and Castillo and Castro. The court held that the issue was not whether maple bats are more likely to break than traditional ash bats — because the risk of injury to spectators who occupy unprotected areas remains the same. The court expressly declined to extend the limited duty of care or to require the owners and operators of a baseball stadium to protect additional areas of the ballpark with protective screening. The court also noted that to hold otherwise would essentially render them insurers of a spectator’s safety — a standard the court expressly declined to adopt. Mr. Falzon has stated that he will appeal the decision while his case against the bat manufacturer proceeds.

Carla Varriale the defendants.

Manbasia Roopnarnine v. Splish Splash at Adventureland, Inc.
Supreme Court, Queens County
Index Number 8539/09
April 12, 2011

Court Finds That Splish Splash Owe No Duty With Respect to an Open and Obvious Condition That is Readily Observed by the Reasonable Use of One’s Senses

Justice Orin R. Kitzes, sitting in Supreme Court, Queens County, granted Splish Splash at Adventureland, Inc.’s (“Splish Splash”) motion for summary judgment. Plaintiff alleged that she sustained injuries as a result of a trip and fall on a raised tree/plant/branch adjacent to the sidewalk/walkway at Splish Splash waterpark on August 29, 2008.

Splish Splash argued that it did not owe a duty of care to plaintiff because the alleged condition was not inherently dangerous as a matter of law and was open and obvious. Splish Splash also argued that it did not breach any duty of care owed to plaintiff and that plaintiff was unable to establish the element of proximate cause. In support of its motion for summary judgment, Splish Splash submitted plaintiff’s deposition testimony which indicated that she arrived at the park picnic area and that her husband parked their van so that the alleged dangerous condition (the tree branch or bush) was directly behind the van. Plaintiff conceded that she saw the tree branch or bus upon arrival and in fact walked in its surrounding area on her way into the waterpark. Plaintiff further admitted that prior to the incident, she did not observe any garbage or debris in the area around the bush and that her vision of the area was not obstructed in any manner. Plaintiff herself was unaware of what caused her to fall and only later learned from family members. Plaintiff also testified that she had frequented the waterpark on prior occasions and was not aware of any complaints regarding tree branches near the parking lot. Splish Splash produced testimony from its General Manager to demonstrate the lack of prior complaints or similar accidents in the picnic area. Furthermore, he testified that the area of plaintiff’s accident was a planter that is about twenty feet wide and one hundred feet long which was filled with “natural” conditions like trees and bushes and were maintained on a daily basis. Finally, Splish Splash produced photographs of purported area which indicated that the bush and roots were clearly visible to observers.

Plaintiff opposed Splish Splash’s motion and argued that the purported condition, identified for the first time by plaintiff’s expert as a juniper, was inherently dangerous and not open and obvious. Plaintiff relies on her expert’s affidavit, who argued that Splish Splash did not adhere to proper horticulture procedures and provide proper maintenance for the juniper. Plaintiff also produced an affidavit regarding a description of the purported condition that she alleges caused her to fall. Finally, plaintiff argued that Splish Splash’s motion was premature as plaintiff had not conducted the deposition of Splish Splash’s head landscaper.

The Court held that there is no duty to warn against a condition that can be readily detected by reasonable use of the senses. The Court noted that plaintiff failed to demonstrate that the tree branch or bush was in any way obscured so as not to be open and obvious or that it was somehow inherently dangerous due to its particular characteristics. The Court noted that plaintiff’s affidavit submitted in opposition, for the first time mentioned that she fell over a bush, while her prior testimony stated otherwise. The Court further held that plaintiff’s expert witness did not raise an issue of fact since his examination of the tree branch or bush occurred over one year after the alleged incident and there was no indication that the condition of the subject area was the same as it was at the time of the incident. Significantly, the Court noted that plaintiff’s expert failed to cite any law, rule, regulation or even industry standard that reflects his conclusion that the subject area failed to follow the standard of care in landscape design. Finally, the Court held that Splish Splash’s motion was not premature as it had produced a witness with sufficient knowledge, a fact that was not contested by plaintiff’s counsel. Plaintiff’s counsel failed to note what information the landscaper could provide and as such, held that the mere hope that discovery would reveal something is not basis for denying Splish Splash’s motion for summary judgment.

Carla Varriale represented Splish Splash at Adventureland, Inc.

Abayev v. Splish Splash at Adventureland, Inc.
Supreme Court, New York County
Index Number 24549/08
April 5, 2011

Court Favors Splish Splash Saying Plaintiff Did Not Support Negligence Claim

Infant plaintiff Rafael Abayev allegedly sustained injuries while a patron at the Splish Splash water park. The infant plaintiff alleged that he and his family were on a queue line for a ride when he decided to leave the line to play in water coming from fountains. To get to the fountains, the infant plaintiff testified that he climbed over chains and under metal bars to enter the fountain area. After splashing water on himself, his parents called the infant plaintiff to come back to the ride queue line. The infant plaintiff stepped back over the chains and went under the metal bars to return to his family. It was not until he was back in the presence of his family that he looked down and noticed that he had cut his leg. He testified that he did not know how or where he was cut. His mother also testified that she did not know how or where her son was injured. The plaintiffs filed suit against Splish Splash alleging that they were negligent in their ownership and operation of the water park. It was undisputed that the area where the fountains were located was a decorative area off limits to the general public.

Splish Splash at Adventureland, Inc. (“Splish Splash”) moved for Summary Judgment on the grounds that: there was no evidence that any defective condition existed, they did not create or have notice of any alleged condition, and that the plaintiffs failed to establish that Splish Splash’s alleged negligence was the proximate cause of the incident.

The Supreme Court of the State of New York granted Splish Splash’s motion, holding that the plaintiffs did not establish: what alleged condition caused the infant plaintiff to be injured, that the alleged condition was defective, that Splish Splash created or had notice of any alleged condition, and that the plaintiffs testimony did not support the plaintiffs claim that Splish Splash’s alleged negligence was the proximate cause of the incident occurring.

Carla Varriale represented Splish Splash at Adventureland, Inc.

Iakovos Papapaulos v. Paramount Security and JMED Holdings LLC
Supreme Court, Queens County
Index Number 21214/08
April 5, 2011

Court finds nightclub is not responsible for a "negligent assault" or for the acts of a contracted security company, determined to be an independent contractor

Iakovos Papapaulos was a patron at Pacha nightclub on September 16, 2007, at which time he was allegedly involved in an altercation with a ticket taker and subsequently assaulted by a security guard, an employee of Paramount Security. The plaintiff argued that Pacha was negligent in permitting the assault, negligently supervised the security company and its employees and violated General Obligations Law § 11-101 (Dram Shop Act).

After extensive discovery, HRRV moved for summary judgment, on behalf of JMED, which does business as Pacha, on the basis that the plaintiff failed to state a cause of action. JMED argued that plaintiff improperly attempted to couch an intentional assault claim as one for negligence. To the contrary, plaintiff's deposition testimony supports a claim based upon an assault by a Paramount security guard. The Court agreed and determined that plaintiff plead a cause of action for assault and that "negligent assault" causes of action do not exist in New York because "once intentional offensive [contact] has been established, the actor is liable for assault and not negligence."

Addressing the negligent supervision claim, the Court held that JMED, as an employer, which hired Paramount Security, an independent contractor, is not liable for the independent contractor's negligent acts. Plaintiff failed to demonstrate any exceptions to the general rule.

The Court also dismissed the Dram Shop claim, as plaintiff did not contest JMED's argument that it did not violate the Dram Shop Act.

Steven Rosenfeld and Gregg Scharaga represented JMED Holdings LLC

Schwartz v. Martin
Appellate Division, Second Department
Index No. 2010-08318
March 3, 2011

Reversal Leads to Dismissal Based on Release

The Appellate Division, Second Department has reversed the order of Supreme Court, Kings County denying a motion for summary judgment on behalf of Century Road Club Association ("CRCA"), USA Cycling, Inc., and granting plaintiff's motion to amend the complaint to add as defendants the City of New York and the New York City Department of Parks and Recreation.

Plaintiff was a CRCA member and volunteer race marshal, who had signed a series of releases over 3 years. Approximately two months after signing the latest release, plaintiff was acting as a marshal at a CRCA race in Central Park, which was a required condition to participating in CRCA club races in Central Park. During the race, plaintiff allegedly was struck and injured by a bicycle ridden by the defendant Terence Martin, who was not participating in the race.

The Court held that the releases clearly and unequivocally expressed the intention of the parties to relieve USA Cycling, CRCA, the City of New York, and the New York City Department of Parks and Recreation of liability for their own negligence. The Court also held that the releases did not violate General Obligations Law § 5-326, noting that although the plaintiff purchased a racing license from USA Cycling, he did not pay a fee to use Central Park. As such, the court (1) dismissed the complaint as against CRCA and USA Cycling and (2) denied plaintiff's motion for leave to amend the complaint to add the City of New York and the New York City Department of Parks and Recreation as defendants. In doing so, the Court enforced the releases signed by plaintiff and held that the alleged acts of the moving defendants did not rise to the level of intentional wrongdoing or evince a reckless indifference to the rights of others (the standard for establishing a claim for gross negligence).

In light of it determination, Court also held that the Supreme Court erred in granting the plaintiff’s motion for leave to amend the complaint to add the City of New York and the New York City Department of Parks and Recreation as defendants, as the proposed amendment was patently devoid of merit.

Steven H. Rosenfeld and Carmen A. Nicolaou represented Century Road Club Association, USA Cycling, Inc., the City of New York and the New York City Department of Parks and Recreation.

Zuckerman v. New York Road Runners, Inc.
Supreme Court, County of New York
Index No. 105044/10
February 18, 2011

Claim of Injury in Manhattan Half-Marathon Dismissed Based on Release

Plaintiff Jonathan Zuckerman alleged that he slipped and fell on January 25, 2009 while a participant in the Manhattan Half-Marathon. The plaintiff filed a Summons and Verified Complaint against defendants New York Road Runners, Inc. ("NYRR") and Road Runners Club of America, Inc. ("RRCA"). According to the Verified Complaint, the plaintiff alleged to have slipped on a slippery substance that he believed to be ice when he moved off of the race course to fix his shoelace. The plaintiff alleged that

NYRR and RRCA were negligent in failing to provide adequate areas for participants to exit the race course. The plaintiff also sued the City of New York and New York City Department of Parks and Recreation.

NYRR and RRCA moved for Summary Judgment on the grounds that the plaintiff executed an Electronic Waiver before he was able to register for the race. The Electronic Waiver stated that by entering the race he assumed all risks associated with participating in the event, including, but not limited to, falls. NYRR produced evidence in support of the motion establishing that it was impossible for an individual, more specifically plaintiff herein, to have completed the registration for the Half-Marathon without clicking the dialogue box, accepting the Electronic Waiver.

Moreover, a review of NYRR's records revealed that plaintiff had registered and participated in NYRR events since 1999. Over the last four years alone, plaintiff has participated in over twenty six NYRR races, each time agreeing to the Electronic Waiver on NYRR's website. Thus, NYRR and RRCA argued that the plaintiff knew and appreciated the language contained in the waiver.

RRCA argued that in the alternative, plaintiff's Complaint must also be dismissed because RRCA had no involvement with the organization or execution of the Manhattan Half-Marathon in general, and had no involvement with the organization or execution of the Manhattan Half-Marathon.

The Supreme Court of the State of New York granted the motion, dismissing the Complaint against New York Road Runners, Inc. and Road Runners Club of America, Inc.

Carla Varriale represented New York Road Runners, Inc. and Road Runners Club of America, Inc.

Michaels v. The City of New York
U.S. District Court, Southern District of New York
10 Civ. 2666 (SHS)
February 16, 2011

Civil Rights Action Against City, Night Club and Security Company Claims Dismissed

As alleged in his complaint, on the night of July 15, 2008, Jonathan Michaels, along with a group of friends, sought to enter Marquee, a Manhattan night club, owned and operated by 10th Avenue Hospitality Group, LLC. Michaels was stopped at the door by Melissa Petters, an employee of Forte Security, which had been contracted by Marquee. Petters requested that Michaels hold his hands out in front of him and, without his consent, proceeded to remove the contents of his pockets. In his pockets, she found three loose pills, which fell to the floor. Although Michaels asserted that the pills were his prescription medication, Petters believed they were the drug known as ecstasy. A chemical test later determined that the pills were, in fact, Klonopin—a legal prescription medication that Michaels had been prescribed.

Petters picked up the pills from the ground and told Michaels to pick up an envelope lying by her feet. Michaels picked up the envelope, which contained cocaine. The face of the complaint does not allege where the envelope had come from. In any event, Petters took the plaintiff’s driver’s license and with the help of unidentified persons held him outside the club in a gated area while she called the police. About 15 minutes later, Police Officer Yeoman Castro and two other police officers arrived at Marquee. Michaels told the officers that the pills were his prescription medication, but the officers rejected his explanation, allegedly without inspecting the pills themselves.

The officers arrested the plaintiff and took him first to the police station for processing, and then to Manhattan Central Booking, where he spent the night. The following morning, he was arraigned on the charge of criminal possession of a controlled substance and released. The criminal complaint includes confessions allegedly made by Michaels to Castro and Petters about his possession of illegal drugs that night. Following his arraignment, Michaels returned to court three times before the charge against him was dismissed approximately seven months later.

While he was in custody on the night of July 15, 2009, the plaintiff asked an unidentified officer for his medication, which he uses to treat Crohn’s disease, an inflammatory intestinal disorder. The officer told Michaels that in order to receive his medication that night he would have to be taken to the hospital in handcuffs and on a stretcher, but his arraignment would be delayed by four days as a result. Given this choice, Michaels opted not to receive his medication that night. Three days after his release, Michaels suffered a Crohn’s disease attack, which he attributes to his earlier inability to take his prescription medication and the stress caused by his detention. Michaels was hospitalized at North Shore University Hospital for approximately one week.

Two weeks before Michaels’s arrest at Marquee, the club had entered into a settlement agreement with the City of New York to settle a public nuisance action. The settlement permitted Marquee—which the City had shut down in late June because of repeated drug arrests on the premises—to re-open on the condition that Marquee implement a drug enforcement program. 10th Avenue agreed, inter alia, to monitor illegal activity at Marquee, employ a private security company such as Forte, randomly search patrons, inform authorities about illegal activity, serve as a complaining witness and provide monthly reports to the City. The settlement further provided that the parties would meet on or before July 18, 2008, to discuss initiating new search procedures and other security concerns. According to the plaintiff, prior to July 15, 2008—the night Michaels was arrested and two weeks after the settlement had been signed—the City had given 10th Avenue and Forte no guidance or training as to how to comply with the settlement.

On March 24, 2010, the plaintiff commenced an action in the U.S. District Court for the Southern District of New York, against the City, Forte, Petters, Officer Castro, and several principals of 10th Avenue, alleging, pursuant to 42 U.S.C. §1983, false arrest, false imprisonment, malicious prosecution and municipal liability claims against all defendants. The plaintiff asserted a deliberate indifference claim pursuant to section 1983 against the City Defendants (which included the named and unnamed police officers). In addition, he asserted a claim for supervisory liability against several individuals associated with Marquee, against Strauss, Tepperberg, 10th Avenue and Forte; assault and battery against Petters and other unnamed Forte and 10th Avenue Marquee employees; negligent hiring, training and retention against the City; and negligence against the City Defendants.

All defendants moved to dismiss in lieu of answering, and Judge Sidney Stein granted the motions in their entirety. Initially, Judge Stein held that because the plaintiff’s complaint failed to allege a sufficiently “close nexus,” between the state and the private parties to bring the challenged actions of private parties under the color of state law, the section 1983 claims against 10th Avenue, its principals, Petters, and any unidentified employees of 10th Avenue or Forte should be dismissed. The false arrest and false imprisonment claims were dismissed because based on the face of the complaint; the police officers had probable cause to arrest Michaels. The malicious prosecution claims were dismissed because, even though City officials initiated a prosecution against the plaintiff, the probable cause which led to the plaintiff’s arrest did not dissipate before his arraignment the next morning.

The plaintiff alleged that the City Defendants violated his Fourteenth Amendment substantive due process rights through their deliberate indifference to his serious medical needs. In rejecting this claim, Judge Stein found that the plaintiff did not show, in objective terms, that a reasonable person would have known about his serious medical needs—alleging only that, while in custody, he requested his prescription medication for Crohn’s disease and not that he showed any outward symptoms of the disease or that he otherwise conveyed to any City Defendant that he believed his condition was grave. Moreover, the complaint indicated that Michaels was, in fact, able to receive his medication—albeit under certain conditions—even though these conditions were that he be “handcuffed to a stretcher and transferred to Bellevue [Hospital],” which would in turn allegedly delay his arraignment for four days.

The plaintiff also asserted claims for municipal liability pursuant to Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), on the theory that the settlement between 10th Avenue and the City represented a City policy. Judge Stein rejected this claim noting that the plaintiff failed to claim that the settlement was unconstitutional on its face and that the plaintiff did not plead facts sufficient to show that the private-party defendants acted under color of state law or to adequately allege any deprivation of his constitutional rights.

The court declined to exercise jurisdiction over the remaining state law claims.

Steven H. Rosenfeld and Gregg Scharaga represented 10th Avenue Hospitality Group, LLC and its principals.

Bernstein v. Wysoki
Supreme Court, Nassau County
Index No. 20226/09
February 14, 2011

"Law of the Case" Applied to Enforcement of a Forum Selection Clause in a Camp Enrollment Form Signed by a Parent

Infant plaintiff Jordan Bernstein allegedly sustained injuries as a result of medical treatment and diagnosis rendered to him while he was enrolled at Camp Island Lake located in Starrucca, Pennsylvania (Wayne County), during the 2007 summer camp season. Prior to the summer session, co-plaintiff Malka Bernstein, the infant plaintiff's mother, signed an enrollment form. One of the terms and conditions listed on the enrollment form is a forum selection clause, which states that “The venue of any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agent is a party shall be either the local District Justice Court or the Court of Common Pleas, Wayne County, Pennsylvania.” The action was commenced in Supreme Court, Nassau County, in the state of New York.

Initially, the camp moved to dismiss the complaint on the grounds that the venue was improper based upon the forum selection clause in the executed enrollment form. However, the Supreme Court denied the motion, holding “that a parent cannot bind a minor child to a forum selection clause.” One of the camp's employees, an infirmary physician, whose motion was denied on similar grounds, appealed the decision to the Appellate Division, Second Department. In a decision dated August 24, 2010, the Appellate Division reversed the Supreme Court’s decision, holding that the forum selection clause is enforceable as a general matter even though it does not include any language expressly providing that the plaintiffs and the camp intended to grant exclusive jurisdiction to Pennsylvania. The forum selection clause relates to both jurisdiction and venue, and employs mandatory venue language, providing that the venue of any dispute arising out of the agreement or otherwise between the parties “shall be either the local District Justice Court or the Court of Common Pleas, Wayne County, Pennsylvania.”

Furthermore, the Appellate Division held that the camp’s infirmary physician, as an employee of the camp, is entitled to enforce the forum selection clause despite her status as a nonsignatory to the camp contract. The forum selection clause itself applies to “any dispute that may arise out of this agreement or otherwise between the parties to which the camp or its agents is a party.” Accordingly, the forum selection clause was valid and enforceable as to the camp and its employees.

The camp and its employee, an infirmary nurse, moved to renew the Supreme Court’s prior decision, which denied its motion to dismiss the complaint. In their motion, the defendants argued that given the Appellate Division’s decision, the Supreme Court should acknowledge, abide by and adhere to said decision, which has changed the law in this action and has affected a prior determination. Alternatively, the defendants argued that the “law of the case” doctrine applies in this action, and a trial court is governed by the common law concept of stare decisis when applying the decisions of appellate courts.

In a decision dated February 14, 2011, the Supreme Court granted the motion to dismiss the plaintiffs’ complaint, holding that the Appellate Division’s decision constitutes the law of the case on this issue.

Carla Varriale and Gregg Scharaga represented the camp (Sports and Arts Center at Island Lake, Inc.) and its employee (Jill Tschinkel, RN).

Anello v. Suffolk County Water Authority
Supreme Court, Suffolk County
Index 24441/08
February 11, 2011

HRRV secures victory on motion to dismiss for Suffolk County Water Authority

Utilizing an aggressive defense under the General Municipal Law and a well-timed motion to dismiss, HRRV lawyers successfully extracted the Suffolk County Water Authority from a suit filed by a pedestrian plaintiff who was seriously injured after falling into an allegedly defective water vault. In a written decision that constituted a warning to claimants who commence suits at their own risk without following Municipal Law procedure, Judge Paul J. Baisley of the Supreme Court of Suffolk County dismissed all claims against the Authority in a hotly contested motion.

The plaintiff, Ricky Anello, sustained severe leg and hip injuries on April 6, 2007 when he allegedly fell into a broken and defective water vault. Claiming that the Suffolk County Water Authority had failed to properly maintain the vault, plaintiff brought suit against the Authority and several adjacent property owners.

Prior to commencement of suit, and after plaintiff filed a Notice of Claim against the Authority, HRRV lawyers promptly demanded that the plaintiff submit to an examination under Municipal Law Section 50-h to give testimony regarding his claims. After adjourning the examination several times and failing to appear at the examination, plaintiff filed suit in Suffolk Supreme Court. In response, HRRV promptly fired back moving to dismiss the complaint under CPLR 3211 arguing that plaintiff had failed to comply with pre-requisites of the Municipal Law Section 50-h(5) rendering his complaint jurisdictionally defective. In opposition, plaintiff vehemently contended that the Authority had waived its right to conduct an examination of the plaintiff and failed to preserve its rights under the General Municipal Law.

Observing that HRRV lawyers had diligently and meticulously documented their efforts to preserve the Authority’s statutory rights to an examination, Judge Baisley soundly rejected plaintiff’s attempts to circumvent the law and reaffirmed the established rule that a potential plaintiff who does not comply with the mandates of the Municipal Law is precluded from commencing suit against a governmental authority. The Court granted the motion in its entirety and dismissed all claims against the Suffolk County Water Authority.

Maier v. Tri-Kelly’s, Inc.
Supreme Court, Westchester County
Index No. 19758/08
February 7, 2011

HRRV Obtains Defense Verdict for White Plains Bar

Plaintiff Kelly Maier, a patron of the Thirsty Turtle, alleged that while exiting the White Plains bar in the early morning hours of January 1, 2008, she slipped and fell due to a wet condition on the floor, approximately three to five feet from the entrance. As a result of her fall, the plaintiff sustained a bi-malleolar fracture requiring surgery. The plaintiff alleged that when she entered the Thirsty Turtle, approximately an hour before her accident, she observed the wet condition and complained to a female bartender. The plaintiff further alleged that in that hour before her accident, no one at the Thirsty Turtle cleaned the condition. Thirsty Turtle had no record of this incident.

At trial, plaintiff and her friend testified inconsistently as to the events preceding the plaintiff’s accident. Specifically, the plaintiff alleged that she was sitting at the bar the entire time she was at Thirsty Turtle and was looking in the area of where she had observed the wet condition and no one from the Thirsty Turtle remedied it. Her friend, however, testified that she and the plaintiff, along with two other female friends, were dancing for a period of time, left the dance floor to use the bathroom located on the lower level, and returned to dancing before the group started making their way out. The plaintiff’s friend also admitted that she had no way of knowing as to whether the condition the plaintiff slipped on was the same condition that they had observed when they walked in.

In addition the defense was able to locate and subpoena the EMT and the triage nurse who treated the plaintiff shortly after the accident. The EMT testified that the plaintiff had told him that she “stumbled” causing her to injure her ankle. The triage nurse testified that the plaintiff told her she “missed a step and landed on her right ankle” causing her to be injured.

The Thirsty Turtle’s assistant manager and bartender on the night of the accident testified that there were approximately 26 employees working at the Thirsty Turtle that evening and that it would have been virtually impossible for a condition, such as the one alleged, to have existed for any extended period of time. He also testified that, based on the location of the alleged condition, approximately five to seven employees were stationed within one to two feet of the condition. In addition, the location was in a high traffic area where bus boys and wait staff regularly transgressed. Finally, the assistant testified that had the accident occurred within the Thirsty Turtle, an incident report would have been generated. The fact that one does not exist can would only show that either Thirsty Turtle was not aware of it or that the accident occurred outside the Thirsty Turtle.

At the close of trial, on February 7, 2011 the Westchester County jury rendered a verdict in favor of the defendant.

Carmen A. Nicolaou represented Tri-Kelly’s, Inc.

Christopher Poggiali v. Sterling Equities, Inc.
Supreme Court, Nassau County
Index Number 018087/10
January 28, 2011

Court Finds That Sterling Equities and Sterling Mets Owe No Duty With Respect to Citi Field.

In a recent decision from presiding Judge Jeffrey S. Brown in the Supreme Court, Nassau County, the Court granted Sterling Equities, Inc. (“Sterling Equities”) and Sterling Mets, L.P.’s (“Sterling Mets”) motion to dismiss and/or for summary judgment to dismiss all claims and cross-claims against them. Plaintiff’s action stems from an injury he allegedly sustained on April 5, 2010, while attending a New York Mets baseball game at Citi Field.

Sterling Equities and Sterling Mets argued that the documentary evidence demonstrated that neither entity was a correct party to the action. Neither entity was involved in the ownership, operation, management, maintenance or control of Citi Field at any time relevant to plaintiff’s action. In support of their motion to dismiss, Sterling Equities submitted an Affidavit from its General Counsel and Sterling Mets submitted an Affidavit from its former Director, Stadium Operations, to demonstrate that neither entity owned, operated, maintained, managed, inspected, supervised, repaired or controlled any portion of Citi Field either prior to or including April 5, 2010. Sterling Equities and Sterling Mets also submitted a copy of the Stadium Lease Agreement between New York City Industrial Development Agency and Queens Ballpark Company, L.L.C. to demonstrate that Queens Ballpark is the entity that operated the Stadium on April 5, 2010.

Plaintiff opposed the motion and argued that Sterling Equities and Sterling Mets’ motion was premature as the parties had not had an opportunity to conduct discovery. Moreover, plaintiff claimed that the Affidavits submitted by Sterling Equities and Sterling Mets were self-serving and without further discovery, plaintiff was unable to oppose the motion. Plaintiff merely relied on a page from the website of Sterling Equities and information from Bloomberg/Business week and Hoovers in an attempt to demonstrate that Sterling Equities and Sterling Mets owned and operated the Mets franchise. Defendant Aramark opposed the motion, claiming that its contracts with Queens Ballpark reflected that Sterling Mets was somehow involved in the operation of Citi Field. Aramark relied upon a provision in the contracts that required the consent of Sterling Mets for certain operations at Citi Field, to argue that at a minimum Sterling Mets had a duty to oversee and consent to certain operations at Citi Field.

The Court held that Sterling Equities and Sterling Mets met their burden of proof and submitted sufficient documentary evidence, mainly Affidavits from individuals with personal knowledge of the facts and a contract regarding Queens Ballpark’s responsibilities with respect to Citi Field. On the contrary, plaintiff failed to raise a triable issue of fact and merely submitted an attorneys’ affirmation in opposition to the motion. Likewise, the internet pages offered by plaintiff in opposition were hearsay and did not stand for the proposition that Sterling Equities or Sterling Mets owed a duty with respect to Citi Field.The Court also rejected Aramark’s contentions and noted that Sterling Mets was not a signatory to either contract with Aramark.

Carla Varriale represented Sterling Mets, L.P. and Sterling Equities, Inc.

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