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HRRV in the Courtroom
2012 Archive

Colon v. Elezaj & Sons Realty
Supreme Court, Bronx County
Index No. 308570/2010
December 10, 2012

Court Finds that Plaintiff Failed to Establish the Existence of a Dangerous Condition and that the Alleged Dangerous Condition was Nevertheless de minimus, Therefore not Actionable

Plaintiff Maria Colon claimed she slipped on a step, due to a hole and a slippery condition on February 16, 2010. She further claimed that the defendant property owner was negligent in its ownership, maintenance and operation of the building located at 3220 Steuben Avenue, Bronx, New York.

In support of its motion for summary judgment, defendant argued that the plaintiff could not establish the existence of a dangerous condition in the location where she fell, and if there was such a condition that it was de minimus, and therefore not actionable.  Justice Julia Rodriguez, sitting in Supreme Court, Bronx County, found that the defendant met its burden of proof on these two arguments, including through the affidavits of the property manager and an expert engineer.  The Court determined that the plaintiff failed to provide evidence raising a question of fact, even though the plaintiff submitted her own expert affidavit. 

Justice Rodriguez, specifically referencing defendant’s reply papers, noted that the plaintiff never claimed that there was an "edge" to the step that caused the fall, or that the steps were worn or eroded.  Rather, the plaintiff identified a hole that was slippery as the defect.  Thus, the plaintiff's expert affidavit discussing a worn and rounded condition, that was slippery at the edge, was an attempt to raise a new theory of liability as the purported cause of the fall.  Even so, the Court noted that defendant's expert explains that even if there had been such a condition, it was irrelevant given the way the plaintiff was descending the stairs.

The Court granted the defendant’s motion for summary judgment finding that the defendant established its burden of proof that it maintained the building in a reasonably safe condition as a matter of law and that the size and depth of the alleged depression on a marble step did not constitute a defective condition.  Further, the Court held that the size and depth of the alleged depression constituted a de minimis condition ordinarily found on marble stairways, thus was not actionable.

Tara C. Fappiano represent the defendant.

Pajotte v. The City of New York, et al.
Supreme Court, Kings County
Index No. 10891/2005
November 21, 2012

Court Rejects  Claim of Causal Connection Between Alleged Traffic Light Malfunction and Loss of Fetus

Mid-day on January 10, 2004, Karlene Pajotte was involved in a motor vehicle accident at the intersection of Bedford Avenue and Avenue W in Brooklyn with another vehicle.  Pajotte claimed the traffic light at the intersection malfunctioned and that she proceeded into the intersection with a green light.  Petrocelli Electric Company had a contract with the City of New York to repair traffic signal lights in the Borough of Brooklyn.

As a direct result of the collision, Pajotte claimed loss of a fetus at seven weeks’ gestation, thereby meeting the threshold showing of a “serious injury” within the statutory definition of Insurance Law §5102(d). 

The police accident report noted that the traffic signal at the subject intersection was defective. Logs kept by the New York City Department of Transportation indicated that Petrocelli was advised of the alleged defective traffic signal at 11:46 am on January 10, 2004. The contract between Petrocelli and the City of New York required Petrocelli to respond to traffic signal malfunctions within two hours of such notice.

Both Petrocelli and The City sought summary judgment a number of different theories.  On First, it was argued that Petrocelli did not owe a duty to the plaintiff as she was neither a direct nor incidental beneficiary of the Petrocelli-City of New York contract.  Second, using the plaintiff’s own testimony as to the time of the accident and the time noted in the New York City Department of Transportation logs, it was argued that since the accident occurred within the two hour window that Petrocelli had to respond to defective traffic signals, Petrocelli could not be culpable, even if the traffic light had malfunctioned. Third, it was demonstrated that when a Petrocelli crew arrived at the subject intersection, the traffic signal was functioning. Fourth, using the testimony of a Petrocelli employee as an a expert on traffic signals, it was shown that a traffic signal could never fail so as to have two green lights in different directions, and that if a malfunction had occurred, the traffic signal had a fail safe device, which would lock the light on the traffic signal to either red or flashing red.  Fifth, it was argued that the loss of a fetus could not be causally connected to the accident and retained a board certified physician in obstetrics/gynecology and reproductive endocrinology, who opined that until a fetus is twelve weeks old, the fetus is protected by the mother’s pelvic bones and that since the fetus was only six to seven weeks old on the date of accident, the fetus could not have been harmed since it would have been protected by the plaintiff’s pelvic bones. 

After lengthy, contentious oral argument before Kings County Supreme Court Justice Sylvia Ash on two occasions, summary judgment was granted to Petrocelli and The City. Justice Ash noted that there was simply no issues of fact concerning whether the subject traffic signal was in fact defective. 

Petrocelli Electric Company was represented by Amol N. Christian.

Pawar v. Stumble Inn, et al.
Supreme Court, New York County
Index No. 100686/12
October 19,  2012

Court Dismisses Defamation Case Against Bar and Employees

Plaintiff, an attorney, alleged that on April 23, 2011, he was at The Stumble Inn and had a beer.  As he was leaving, he saw a group of patrons who “appeared underage and intoxicated” and a security guard, who was not checking identification. Plaintiff called 911 about his concerns.

Contrary to plaintiff’s story, Stumble Inn employees advised the police, who arrived in response to plaintiff’s call, that plaintiff failed to pay $6.95 for an order of chicken wings and called the police when he was confronted about his refusal to pay. As a result, the police drove plaintiff to the local precinct, and upon further investigation, voided the theft of services charge, and allowed plaintiff to leave. After he had spent several hours in custody. Plaintiff filed suit against the bar and its employees; but did not name the NYPD.

The plaintiff’s complaint asserted the following causes of action:  (1) defamation; (2) violation of plaintiff’s First Amendment rights; and (3) vicarious liability of the bar for the conduct of its employees under the theory of “respondeat superior.” Plaintiff sought compensatory and punitive damages.

Acting on behalf of all of the defendants, HRRV moved to dismiss the complaint for failure to state a cause of action. Justice Louis York granted the motion in all respects. The court noted that plaintiff’s cause of action for defamation had been insufficiently asserted in the form of slander.  The  allegations that bar personnel falsely and publicly accused plaintiff of theft of services and called him a thief were insufficient.  The elements of a cause of action for slander are (i) a defamatory statement of fact, (ii) that is false, (iii) published to a third party, (iv) of and concerning’ the plaintiff, (v) made with the applicable level of fault on the part of the speaker, (vi) either causing special harm or constituting slander per se, and (vii) not protected by privilege. [citation omitted7o;]” (Albert v Loksen, 239 F3d 256, 265-266 [2d Cir 2001]). Although generally, a plaintiff alleging slander must plead and prove that he or she has sustained special damages, such as the loss of something having economic or pecuniary value, a plaintiff need not prove special damages if he or she can establish that the alleged defamatory statement constituted slander per se. The four exceptions which constitute slander per se are statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a women. When statements fall within one of these categories, the law presumes that damages will result, and they need not be alleged or proven.

The court held that plaintiff failed to sufficiently allege the requisite elements of either special damages or slander per se. The charge of stealing a $6.95 order of chicken wings, hardly constitutes that of a serious crime.

Plaintiff’s second cause of action for violation of his First Amendment freedom of speech rights is predicated upon allegations that bar personnel accused him of theft of services in retaliation for advising the NYPD of his concerns about the underage/intoxicated bar patrons.  The first major qualification is that the First Amendment, as with the other freedoms in the Bill of Rights, protects people from governmental, not private, interference with our speech.  The court concluded that, under the described circumstances, plaintiff’s allegations of retaliatory violation of his First Amendment right to freedom of speech failed to set forth a basis upon which to assert a cognizable claim in that he has merely asserted private, rather than governmental conduct.

Pawar’s third cause of action asserted against the bar was predicated upon the theory of “respondeat superior” whereby a principal is deemed vicariously liable for the wrongdoings of its agents who (i) were acting within the scope of their employment and (ii) the employer is, or could be, exercising some control over the employee’s activities.  Inasmuch as plaintiff insufficiently asserted a viable claim against the bar’s employees who were, at all relevant times, performing their tasks on behalf of the bar, the assertion of “respondeat superior” as a predicate upon which to seek relief is inapplicable.

The court also dismissed plaintiff’s claim for punitive damages, since the complained of wrongful conduct did not arise to that necessary to support a cause of action for compensatory damages.

Steven H. Rosenfeld and Gregg Scharaga represented the defendants.

Ramirez v. 10th Avenue Hospitality Group, LLC
Supreme Court New York County

Index No. 118129/2009
October 12, 2012

Nightclub Patron Held to be Third-Party Beneficiary of Contract Between Security Company and Nightclub

Edward Ramirez was a patron at Marquee nightclub, operated by 10th Avenue Hospitality Group, LLC on the evening of August 28, 2009. Plaintiff arrived at the premises at approximately 10:30 p.m. and was given free admission because he was with his friend Schuller (“DJ Schuller”) and DJ Schuller was going to work that night at Marquee as a deejay on the mezzanine level.  The deejay booth on the mezzanine level was encased in plastic.  In order to go from the first floor of the premises to the mezzanine level, plaintiff and Schuller went up the staircase which was located on the right wall of the club.  The deejay booth was approximately 30 feet from the top of that staircase.  DJ Schuller gave plaintiff complementary drink tickets and plaintiff obtained his first alcoholic drink, a Jack Daniels on the rocks, by the bar near DJ Schuler’s deejay booth on the mezzanine level.

At approximately 12:00 a.m. on August 29, 2009, plaintiff left the premises and went to another nightclub called Mansion.  Plaintiff remained at Mansion for less than thirty minutes and consumed one Jack Daniels on the rocks while he was there. Upon exiting Mansion, plaintiff went to a bodega and purchased and consumed a croissant and a Heineken beer.  Plaintiff returned to Marquee between 1:00 and 10:30 a.m.  He remained on the first floor of the premises for approximately 15 minutes and had another Jack Daniels on the rocks, which was served to him by a bartender on the first floor.  Plaintiff then walked upstairs using that same right staircase to the mezzanine level and went to DJ Schuller.  Plaintiff spoke with DJ Schuller and thereafter, consumed another Jack Daniels on the rocks, which was served to him by the bartender on the mezzanine level.  Plaintiff then began dancing with a girl in the area near DJ Schuler’s deejay booth.

At one point, plaintiff put his hands on the plastic which encased DJ Schuler’s deejay booth.  Plaintiff was then warned by Carl Davis, a security guard employed by Forte Security (“Security Guard Davis”), to remove his hand(s) from the deejay booth.  Plaintiff did not remove his hand from the plastic.  Approximately two minutes later, Security Guard Davis returned and gave plaintiff a second warning to remove his hands from the plastic encasing.  When plaintiff did not listen, the Security Guard Davis told plaintiff “it was time to go” and then put his hand on plaintiff s right shoulder and started to escort plaintiff out of the premises. At that time, plaintiff informed Security Guard Davis that he had to return the car keys to DJ Schuller.  Security Guard Davis removed his hands from plaintiff and plaintiff then returned the keys to DJ Schuller. Plaintiff then walked toward the staircase to walk down to the first floor. Plaintiff testified that when he was at the top of the staircase, he took a step with his right foot and reached out for a handrail but that there was no handrail.  It was at this point that plaintiff slipped and fell down a flight of stairs, coming to rest on a concrete landing.  Security Guard Davis was not touching plaintiff in any manner at the time he slipped and fell.  It is undisputed that plaintiff was intoxicated at the time his accident occurred.

After plaintiff fell to the concrete landing, he alleged he became unconscious.  Security guards from Forte Security were then called to the scene.  According to video footage of plaintiff’s accident, while plaintiff lay unconscious, a female patron was allowed to approach him and hold his head in her lap. Plaintiffs body was then picked up and removed by Bryan Vetell (“Security Guard Vetell”) and Chris Sali (“Security Guard Sali”), security guards also employed by Forte Security.  Plaintiff was then brought to his feet and into the vestibule of Marquee with Security Guard Vetell and Security Guard Sali on either side of him holding him up.  In the video, plaintiff is next seen lying on the floor in the nightclub’s exit vestibule.  The video shows one of the security guards going through plaintiff’s pockets and in doing so, rolling him over to his side.  Plaintiff’s head was not stabilized or protected at this time. After laying on the floor of the vestibule for several minutes, plaintiff attempted to stand but was unable to do so. A security guard then began cleaning plaintiff s face as it was bleeding.  Security Guard Vetell testified that he then put plaintiff in a cab.  Plaintiff was found in a McDonald’s parking lot two to three hours later by two strangers who called plaintiff s friend by using plaintiff s cell phone. Plaintiff was then taken to Bellevue Hospital by ambulance.  The Emergency Room record indicated that plaintiff had the following injures: swelling and contusions on the left side of his head, five separate sites of bruising on his back, abrasion 5 inches on left illiac crest, 3 inch ecchymosis back of right thigh, inside of left thigh posterior medial aspect fresh ecchymosis about 8 inches in length and bruising on his right shoulder. While in the Emergency Room, plaintiff had a change in mental status and had a seizure.  Plaintiff was then transferred to the operating room where the surgeon noted that they were bringing him in for “emergency life saving surgery.”  Plaintiff alleged that Forte Security’s actions after he fell caused or contributed to his injuries.

In Ramirez v. 10th Avenue Hospitality Group, LLC, (Sup. Ct. New York Cty., Index No. 118129/2009), Forte Security moved for summary judgment to dismiss all claims and cross-claims against it, arguing that it did not owe a duty of care to plaintiff.  Specifically, Forte argued that plaintiff was not an intended third-party beneficiary of the Security Services Contract between 10th Avenue and Forte, that plaintiff’s intoxication was the sole proximate cause of his accident and that Forte’s employees were not actively negligent in escorting plaintiff down the stairs.

Acting on behalf of 10th Avenue, HRRV opposed the motion, as did plaintiff’s counsel. The court denied the motion and held that if “an injured party [seeks to] recover as a third-party beneficiary for failure to perform a duty imposed by contract, it must clearly appear from the provisions of the contract that the parties thereto intended to confer a direct benefit on the alleged third-party beneficiary to protect him from physical injury.”  Bernal v. Pinkerton’s, Inc., 52 A.D.2d 760 (1’ Dept 1976).  The party must be an intended and not a mere incidental beneficiary but the party is not required to be mentioned as a party to the contract. LaSalle Nat. Bank v. Ernst & Young LLP, 285 AD2d 461 (1st Dept 2001).

Ultimately, the court determined that Forte owes a duty to plaintiff as plaintiff was a third-party beneficiary of the Security Service Contract.  “It is clear from the language of Paragraph I of the contract that Marquee and Forte Security intended to protect patrons such as plaintiff from personal injury at the premises. Thus, plaintiff is an intended third-party beneficiary of the contract and not merely an incidental beneficiary. Although plaintiff is not directly mentioned by name in the contract, that is not required in order to be considered a third-party beneficiary under the contract.”

The court noted a similar result in the case Haber v. Precision Sec. Agency, 24 Mise.3d 1229 (Sup. Ct. Kings Cty. 2009). In Haber, the court denied defendant Precision’s motion for summary judgment on the ground that it owed a duty to plaintiff as a third-party beneficiary of a contract Precision maintained with co-defendant Stereo nightclub.  Plaintiff, a patron of Stereo, was assaulted by another patron of the club. The assault occurred right outside the doors of the club, a few feet away from Precision’s security guards. Precision asserted in its motion that it did not owe a duty to plaintiff as it only maintained a contractual relationship with Stereo and thus could not be held liable for not corning to plaintiffs aid during the assault.  However, the court cited the “Services to be Provided” provision of the contract which stated that services included, but were not limited to, “protecting with non-lethal, non-injurious and reasonable methods all property, employees and other persons legally on the property of the Venue...”  Haber, 24 Misc.3d at *5.  The court found that that provision “demonstrate[s] that Precision intended to provide security services to protect third parties legally on the property and therefore, patrons were intended beneficiaries of the contract to provide security.” Id. 

As the same contractual language was used in the contract between 10th Avenue and Forte, , the court found that plaintiff is a third-party beneficiary of the contract, and thus, was owed a duty by Forte Security.  “There exist issues of fact as to whether Forte Security’s behavior on the evening of plaintiff’s accident constituted negligence and whether that negligence contributed to plaintiffs injuries.” 

While not specifically mentioned, the court also denied Forte’s requested relief to dismiss 10th Avenue’s cross-claims.

Forte has filed a notice of appeal.

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

Benerofe v. Wolf and Thirsty Turtle
Supreme Court, Westchester County
Index No. 114322/08
October 11, 2012

HRRV Obtains Defense Verdict for Bar in Negligent Security/Assault Case

Seth Benerofe alleged that on June 28, 2009, he was involved in an altercation with Bryan Wolf while each was a patron at the Thirsty Turtle, a bar in White Plains, New York. Benerofe also alleged that in addition to providing inadequate security, Thirsty Turtle security guards assaulted him immediately after he was separated from the altercation with Wolf. Benerofe alleged, that as a result, he sustained a fracture to his nose, necessitating a synoplasty; a fracture to his left orbital; and facial lacerations.

At trial, the plaintiff argued that he and Wolf engaged in a heated argument that lasted three minutes. Benerofe further alleged that the heated argument was started by Wolf when he spoke to the plaintiff in an offensive and derogatory manner. Although Benerofe admitted to throwing the first punch, he claimed to have done so only after Wolf made a sudden jerking movement toward him. It was the plaintiff’s position that he acted in self-defense. Benerofe further alleged that Wolf struck him in the face several times before security guards were able to break up the fight. He said that the security guards then proceeded to punch, stomp and kick him after he was separated from Wolf.

Prior to trial, the plaintiff moved for spoliation of evidence against Thirsty Turtle on the basis that the surveillance video abruptly ended. It was argued that had the video not abruptly ended, it would have depicted the assault by the security guards on the plaintiff. While the court denied the plaintiff’s motion, it did agree to present the jury with a spoliation of evidence charge.

Several nonparty witnesses were called to testify at the trial, including two of the plaintiff’s friends who were present when the altercation occurred, a White Plains police detective and the doctor who treated the plaintiff in the emergency room. Wolf argued that Benerofe started the fight when he threw the first punch, therefore Wolf was acting in self-defense. Thirsty Turtle not only submitted evidence to demonstrate that it provided adequate security, but that it responded to the altercation as soon as its security guards became aware of it. Thirsty Turtle relied on the surveillance footage to demonstrate that security guards responded immediately after the altercation started. In defense of the assault claim, Thirsty Turtle established through the testimony of one of Benerofe’s friends, that she was with the plaintiff from the moment he was pulled from the fight up until he was at the emergency room and she admitted that she did not observe security guards assault the plaintiff.

Finally, Thirsty Turtle submitted into evidence the police investigation report indicating that no one, including the plaintiff, reported to the police that security assaulted him. While the plaintiff argued that he was on pain medication at the time he provided the statement (given to him after he left the emergency room) and his recollection was not clear, the emergency room records and the doctor’s testimony established that the plaintiff was not given any pain medication or a prescription for pain medication.

At the close of evidence, the court dismissed the assault claims against Thirsty Turtle, finding that there was no testimony substantiating the plaintiff’s claim that he was assaulted by security guards and the only testimony submitted was speculative and insufficient. As a result, the court did not present to the jury the spoliation of evidence charge relative to the missing video images. The jury deliberated for approximately 15 minutes and returned a defense verdict.

Carmen A. Nicolaou was trial counsel for Tri-Kelly’s, Inc. d/b/a Thirsty Turtle.

Travelers Property Casualty Co. v. Crane Construction Co.
Index No.:  150161/10
Supreme Court, New York County
June 28, 2012

Court Dismisses Third-Party Claims Against Plumbing Sub-Contractor in Multi-Million Property Damage Claim

In a property damage/subrogation action, Travelers Property Casualty Co. seeks to recover a large sum that it allegedly paid to its subrogor, Ann Taylor, in connection with property damage resulting from an unintended discharge of water from an HVAC water line in the ceiling of Ann Taylor's leased space.  It is alleged that a valve that was affixed to a chiller line located in the ceiling of the retail store failed and allowed pressurized water to escape into the store causing damage to merchandise, fixtures, walls and other areas of the store.

Sanco Mechanical, Inc. ("Sanco") was a subcontractor who was hired by Marlin Mechanical, Inc. ("Marlin") to perform plumbing and/or piping work during the build-out of the Ann Taylor store.  Marlin, named as a defendant in the main action, commenced a third-party action against Sanco, seeking contractual and common law indemnification, contribution and asserted a breach of contract claim.

Sanco moved to dismiss the third-party complaint against it.  Specifically, Sanco argued that did not install, or have anything to do with the installation or maintenance of the identified 3/4” valve that allegedly failed on May 31, 2010.  Rather, Sanco demonstrated that it installed 2½” valves in connection with its plumbing and/or piping work and therefore could not be held liable, contractually or otherwise, for the performance of its work at the premises.  Upon argument, the Court agreed and dismissed the third-party complaint against Sanco in its entirety.

Tara Fappiano and Gregg Scharaga represented Sanco Mechanical Inc.

Joseph Palker v. MacDougal Rest Inc.
Index No.:  105781/10
Appellate Division, First Department
June 26, 2012

Court finds NYC bar is not liable for a "negligent assault" of a patron by one of its security guards

Joseph Palker was a patron at Off the Wagon on August 15, 2007, at which time he was allegedly assaulted by a security guard, an employee of the bar. The plaintiff however, did not assert a claim for civil assault and battery, and, given that the action was not commenced within one year of the alleged incident, could not assert such a claim.  Rather, the action sounded only in negligence.

After discovery was complete, HRRV moved for summary judgment, on behalf of MacDougal Rest Inc., which does business as Off the Wagon, on the basis that the plaintiff failed to state a cause of action. The motion court properly granted summary judgment, in part, to McDougal as to plaintiff’s claims of negligent hiring, retention and supervision.  Yet, the motion court made a distinction between the aforementioned claims and a “general negligence” claim, allowing this undefined claim to survive. 

HRRV appealed the decision of the motion court to the Appellate Division, First Department, arguing that the motion court should have dismissed all negligence based claims arising out of the underlying assault. The Appellate Division unanimously reversed that part of the decision and the motion granted in its entirety, dismissing the complaint.  The Court held that the lower court should have granted defendant's motion because "under no fair construction of the complaint or interpretation of plaintiff's own account of the events could the conduct of defendant's employee be deemed negligent. Plaintiff clearly based his action on an alleged offensive touching. Hence, defendant can be liable, if at all, only for assault and not for negligence, regardless of the manner in which the complaint characterized the action."  Given that MacDougal cannot be held vicariously liable for its employee's conduct because the statute of limitations elapsed in August 2008 and plaintiff did not commence this action until April 2010, plaintiff was not permitted to circumvent the court's rules and procedure.  

Steven H. Rosenfeld and Gregg Scharaga represented MacDougal Rest Inc. 

Kekovic v. 13th Street Entertainment
Supreme Court, New York County
Index No. 116636/09
June 14, 2012

Summary Judgment Granted to Defendant Nightclub

HRRV prevailed on a motion for summary judgment on behalf of 13th Street Entertainment LLC d/b/a Kiss & Fly Nightclub (13th Street) in a negligence action arising out of personal injuries sustained by a patron at a nightclub in New York City. 

Plaintiff Sinisa Kekovic was a patron at 13th Street’s Kiss & Fly nightclub when he allegedly sustained personal injuries after being struck on the head with a bottle of vodka by an unknown assailant.  He commenced an action against 13th Street alleging that his injuries were the proximate result of 13th Street having violated General Obligations Law §11-101, New York’s Dram Shop Act, which imposes liability upon a purveyor of alcohol who “unlawfully” sells alcohol to a person for injuries caused by reason of that person’s intoxication.  See, NY General Obligations Law §11-101 (2004)

To determine the scope of the liability imposed under General Obligations Law § 11-101, the statute must be read in conjunction with Alcohol Beverage Control Law § 65(2), which prohibits the sale of alcohol to a person “actually or apparently under the influence of liquor.”  In other words, in order to sustain a Dram Shop cause of action, plaintiff must offer evidence that the party to whom liquor was sold appeared to be visibly intoxicated at the time of the sale.  See, General Obligations Law, supra; Romano v. Stanley, 90 N.Y.2d 444, 447 (1997).    

In this action, plaintiff argued that 13th Street was liable for serving his assailant, an individual sitting at a nearby table in the VIP bottle service section, in excess.  Mr. Kekovic testified that a waitress served a group of men several bottles of vodka and he observed these men being extremely loud and boisterous.  Mr. Kekovic also claimed that his friends, who were with him that night, told him that it was a Spanish or African-American man seated at the table that struck him.     

 HRRV argued that 13th Street could be held liable since Mr. Kekovic is unable to identify his assailant.  Because plaintiff could not set forth sufficient evidence that 13th Street served the alleged assailant while he was visibly intoxicated.  Mr. Kekovic’s testimony and allegations did not meet the standard to hold an establishment liable under the Dram Shop Act.

Justice Saliann Scarpulla agreed with 13th Street’s position, finding that plaintiff could not establish whether his attacker was actually or apparently intoxicated.  The court noted “Kekovic’s blanket observations concerning the bottles on the table and boisterous behavior of the men seated there are too generalized to form the basis for the claim.”  Accordingly, the court awarded 13th Street summary judgment, dismissing the plaintiff’s complaint.    

Steven H. Rosenfeld and Gregg Scharaga represented 13th Street Entertainment.

Speights v. Splish Splash at Adventureland, Inc.
Palace Entertainment, Inc. and Palace Entertainment

Supreme Court, Suffolk County
Index No. 21560/2008
June 1, 2012

Court Finds That Water Ride Patron Assumed Risk of Injury

James Speights alleged that on August 19, 2005, he sustained personal injuries while a patron at Splish Splash Water Park, located in Riverhead, New York. He claimed that he was injured on the Shot Gun Falls attraction due to Splish Splash's negligent maintenance and operation of that ride. Plaintiff specifically alleged that the water jets at the entrance of the ride were calibrated to a degree that ejected water forceful enough to cause plaintiff to fall and that Splish Splash failed to provide adequate warning of the existence of that condition. Plaintiff also alleged that Splish Splash was negligent in the hiring, training and retention of its staff.

In support of Splish Splash's summary judgment motion, Splish Splash argued that plaintiff's action should be dismissed under the Assumption of Risk doctrine. This doctrine precludes a plaintiff from recovering injuries sustained during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law. Splish Splash relied upon the plaintiff's deposition testimony to demonstrate that he understood and voluntarily assumed any risks associated with using the Shot Gun Falls water slide. To this end, Splish Splash argued that plaintiff was an adult who had prior experiences riding water slides, thus understood and appreciated any risks associated with the use of same. Further, Splish Splash argued that it had no notice of a "dangerous condition" existing at the Shot Gun Falls attraction. This assertion was supported by an affidavit of Splish Splash's General Manager that there have been no prior similar accidents or complaints with respect to the water jets, lack of signage or inadequate staffing.

In opposition to Splish Splash's motion, plaintiff attempted to raise a triable issue of fact as to the existence of a dangerous condition over and above the risk inherent in riding the Shot Gun Falls attraction. The Court noted that plaintiff' s allegations were nothing more than bare and conclusory statements. Furthermore, plaintiff's allegations were unsupported by any evidence.

The Court granted Splish Splash's motion for summary judgment, holding that Splish Splash established a prima facie entitlement to dispositive relief, as a matter of law, by presenting evidence that plaintiff was an adult at the time of the accident and understood and voluntarily assumed the risks inherent in utilizing the Shot Gun Falls attraction.

Carla Varriale represented the defendants.

Timmons v. Bensusan Restaurant Corp.
Supreme Court, New York County
Index No. 114322/08
May 23, 2012

HRRV Obtains Defense Verdict for BB King Blues Club and Grill

Plaintiff Heather Timmons,  a patron of BB King  Blues Club and Grill, alleged that while descending the staircase soon after entering the venue, her shoe became caught on a raised friction strip, causing her to trip and fall down the stairs.  As a result of her fall, the plaintiff claimed to have sustained a sprain to her plantar fasciitis, resulting in chronic fasciitis to the bottom of her left foot.  The plaintiff alleged that the carpet on the entire stairwell was worn, torn and frayed.  In addition, the friction strips were raised throughout the staircase. 

At trial, the plaintiff testified that while she did not observe her shoe become caught on a friction strip, she felt it.  She also testified that she never observed the condition that caused her accident at anytime before or after the accident and did not recall the general condition of the staircase.  Finally, she admitted that she was not holding on to the banister at anytime prior to her accident.  In order to meet her burden on liability, the plaintiff called her sister Melba Timmons as a non-party witness.  Ms. Timmons testified that the carpet was in general disrepair and was worn and frayed throughout.  She also testified that the friction strips on the edge of the steps were raised.  Finally, Ms. Timmons observed her sister’s shoe become caught on a raised friction strip immediately before she fell down the entire staircase.  She claimed to have observed this while standing at the bottom of the staircase, looking up at the plaintiff was she was standing at the tip of the staircase.

In defense, BB King argued and demonstrated by documentary evidence that the carpet, a commercial grade carpet, was replaced a year prior to the plaintiff’s accident and cleaned less than two months before the plaintiff’s accident.  In addition, BB King produced Michael Fancher, a witness to the plaintiff’s accident and the manager on duty at the time of the plaintiff’s accident, who testified that the plaintiff fell down the stairs not because of any condition on the steps, but due to her own inability to descend the staircase while wearing heels and not holding on to the banister. 

At the close of trial, the New York County jury rendered a verdict in favor of the defendant.

Carmen A. Nicolaou was trial counsel for  the defendant.

Malloy v. Splish Splash at Adventureland, Inc., and Festival Fun Parks, LLC
Supreme Court, Suffolk County
Index No.: 8323/09
May 16, 2012

Court Applies Assumption of Risk to Dismiss Claim of Water Ride Patron

Plaintiffs commenced an action in the Supreme Court, Queens County after the infant plaintiff, Nicole Louise Malloy, was allegedly injured on the Barrier Reef ride at the Splish Splash Water Park. Plaintiffs alleged that the defendants were negligent in the design, construction, operation and supervision of the ride. Plaintiffs further claimed that the excessive force and speed of the water as well as the downgrade and force at a sharp turn in the slide caused the infant plaintiff to be propelled into the side of the slide and sustain injuries to her jaw.

Splish Splash moved for summary judgment dismissing the complaint arguing that the defendants did not owe a duty of care to the infant plaintiff, that the ride was safe for those patrons who chose to ride it, and that the infant plaintiff, who was sixteen years old at the time, was aware of, and appreciated the risk of injury associated with riding the Barrier Reef attraction.  Splish Splash also argued that it did not create the alleged dangerous condition, or have actual or constructive notice of an alleged defective condition, and that it was not the proximate cause of the accident.

In support of its motion, Splish Splash submitted the infant plaintiff’s deposition testimony, which indicated that she arrived at the water park with her three friends on the morning of her accident.  She watched as her friends went on various water slides throughout the day. In the early evening, the infant plaintiff and her friends decided to go on the Barrier Reef ride. The infant plaintiff testified that when she went down the slide, she slid from side to side out of control, before hitting the side of her face and head on the bottom of the slide. She believed that the reason her head and face hit the slide was because there was not enough water at the end of the ride to allow her to slide into the pool.

Splish Splash produced testimony from its general manager to demonstrate the lack of prior complaints or accidents on the Barrier Reef ride. The testimony established that the entire ride, including the water pumps, were inspected each morning and that a daily inspection sheet was maintained by the water park. At the time of the infant plaintiff’s accident, there was an attendant at the top of the ride, and a lifeguard in the pool at the bottom of the ride. There was also a sign at the top of the ride instructing patrons on the proper way to ride the attraction.

Justice Peter Fox Cohalan granted the defendants motion dismiss the complaint, finding that the premises, including the Barrier Reef ride was maintained in a reasonably safe condition and that Splish Splash had no actual or constructive notice of the conditions complained of. In applying the doctrine of assumption of the risk, the Court held that the infant plaintiff was aware of the risk of injury when she voluntarily chose to ride on the Barrier Reef, and that the risk she consented to was a commonly appreciated risk inherent in the activity. Furthermore, the Court stated that the plaintiffs had failed to establish the existence of a concealed defect, or any evidence that the slide presented an unreasonably increased risk of injury.

Carla Varriale and Lindsay Kaplow represented the defendants.

Bensai v. MCPJF W. 16th LLC,
Supreme Court, Queens County
Index No. 28547/09
May 9, 2012

Queens County Jury Finds No Liability in Case Against HRRV Client Building Owner

This matter stemmed from an action for personal injuries resulting from an accident which allegedly occurred on September 3, 2008.  Plaintiff Zouheir Bensai, an employee of Greenwich Village Entertainment Group, LLC (“Greenwich Village”), which does business as Highline Ballroom, a live music venue, commenced this action against MCPJF, the owner of the building located at 431 West 16th Street, New York, New York, in which Highline Ballroom is located.  Plaintiff alleged that he sustained injuries as a result of slipping and falling inside the premises on a set of stairs due to an alleged dangerous condition.

On the date of the incident, MCPJF was only the owner of the building in which Highline Ballroom was located – an out-of-possession landlord – and had no interest in the ownership or operation of Highline Ballroom.  MCPJF did not employ any individuals who worked at Highline Ballroom, nor did it operate, manage, supervise or control the premises. 

The lease agreement between MCPJF, as owner, and Greenwich Village, as tenant, was in effect from 2006 to the present.  The lease agreement was in effect on September 3, 2008.  Pursuant to the terms of the lease, Greenwich Village leased the second floor space including a mezzanine area of approximately 9,000 square feet in the building located at 431 West 16th Street, New York, New York.

The lease stated in section 4.01 that the landlord shall make all structural repairs to the building, not caused or necessitated by the conduct, actions or negligence of the tenant.  Section 4.02 provides that the tenant shall maintain and take good care of the demised premises, fixtures, equipment, systems and appurtenances thereto, and make all non-structural repairs to the premises, fixtures, equipment and appurtenances therein.  Section 5.01 requires the tenant to comply with all laws, deed restrictions, orders, ordinances, and regulations or federal, state, county and municipal authorities with respect to the occupancy, use or manner of use of the premises.

Defendants contended that as of September 3, 2008, Greenwich Village and its employees were solely responsible for operating, maintaining, repairing and controlling the second floor space including a mezzanine area, which further included an interior staircase which provided accessed between the second floor and mezzanine area.  The interior staircase had a handrail which Greenwich Village and its employees were likewise solely responsible for maintaining, repairing and controlling as of September 3, 2008.     

Defendant contended that plaintiff could not make out a prima facie cause of action for negligence.  The court did not accede to plaintiff’s request to charge any NYC Building Code violation – and the jury, in answering the first question posed to it, found the staircase at issue to be reasonably safe.

Plaintiff alleged the breaking of a pre-existing rod in his leg and a turn ACL, requiring two surgeries. The pre-trial settlement demand was $750,000.

Steven H. Rosenfeld was trial counsel for the defendant.

Kalafatis v. Royal Waste Services, et al.
Appellate Division, Second Department
2012 Slip Op 02603
May 8, 2012

Appellate Division, Second Department Affirms Dismissal of Catastrophic Brain Injury Case

The Appellate Division, Second Department, without hearing any oral argument, affirmed an award of summary judgment to our clients, Francisco Meza, a truck driver, and his employer, Royal Waste Services, in a Kings County case with potentially catastrophic damages.  The Supreme Court had granted the plaintiff's motion for reargument of the clients' motion for summary judgment and, upon reargument, adhered to its decision dismissing the case against the clients.

A Royal Waste Services truck driven by Meza collided with a stolen vehicle in which the plaintiff was a passenger.  Meza entered an intersection with a steady green light and, as he did so, the stolen vehicle, which was speeding and had gone through several red lights, including that at the subject intersection, collided with the truck.  As a result of the incident, the plaintiff sustained brain damage and his mother brought the action on his behalf.

Although Meza admitted that he did not look to his left when he entered the intersection which, the plaintiff claimed, raised an issue of fact regarding whether he would have seen the stolen vehicle approaching from his left, thereby allowing him the opportunity to avoid the collision, the Appellate Division, Second Department found that the negligence of the driver of the stolen vehicle was the sole proximate cause of the incident.  Therefore, held the Appellate Division, the Supreme Court properly adhered to its original determination on reargument.

Since a finding of even 1% liability on the part of the clients could have resulted in an astronomical damages award given the injuries sustained by the plaintiff, this was a significant victory.

Amol N. Christian represented the defendants.

Colon v. Mountain Creek Waterpark
U.S. Court of Appeals for the Third Circuit
No. 11-1811
February 24, 2012

HRRV Prevails On Appeal To The Third Circuit Court Of Appeals: New Jersey’s Rider Responsibility Law Sinks Negligence Claim Against Water Park

HRRV has prevailed on a novel negligence action, both at trial and on appeal of the defense verdict to the Third Circuit Court of Appeals based upon, in part, the application of New Jersey’s unique rider responsibility law.

In Colon v. Mountain Creek, an admittedly obese man with osteogenis imperfecta, (a congenital brittle bone disease), disregarded instructional signs, warnings (including warnings that the water ride was not suitable for overweight people or people with physically limiting conditions) and common sense, while attempting to board a white water-type raft ride known as the “Colorado River” at  New Jersey’s Mountain Creek Waterpark. Emanuel Colon claimed that he  fractured his ankle while attempting to board the Colorado River attraction When Colon attempted to step into the water in order to board a raft, he abruptly came in contact with the bottom of the pool and fractured his ankle.  He underwent surgery and claimed to be disabled as a result of the accident.

Colon sued Mountain Creek and alleged that proper safety standards required that patrons be assisted by lifeguards or staff while getting into a Colorado River raft, that there was a lack  adequate notice or warnings advising, among other things, patrons to wait for assistance, among other things.  He further argued that the area where he entered the water was unsafe because the current produced by the adjacent waterfall (a part of the attraction) “as strong and fast, the water was turbulent with ‘white water’ obscuring a view of the bottom and the depth of water unmarked and unknown.”

At trial, Mountain Creek successfully demonstrated that Colon acted without regard for his own safety and that he violated New Jersey’s unique rider responsibility law, known as the Carnival-Amusement Ride Safety Act, N.J.S.A.5:3-31et seq. (the “Rider Responsibility law”).1 The Rider Responsibility law governs  the actions of amusement and water park operators as well as water park participants.  The Rider Responsibility law is based on a water park industry consensus standard, ASTM International (formerly American Society for Testing and Materials) Standard F770-93 (“ASTM F770”).  This standard sets forth industry protocols for the operation and maintenance of amusement attractions and sets forth the respective responsibilities of the owner/operator of an amusement device and the patrons who participate in such activities.  At trial, Mountain Creek established that Colon violated his responsibilities under the Rider Responsibility law and a jury returned a defense verdict on behalf of  Mountain Creek

New Jersey’s Rider Responsibility law and ASTM F770 demonstrated that Colon should not have participated in an attraction like the Colorado River from the outset.  During discovery, Mountain Creek determined that Colon was not only obese at the time of the alleged accident, but he also suffered from a congenital brittle bone condition, osteogenesis imperfecta. Armed with evidence that Colon was predisposed to a  fracture – and that there was appropriate signage warning patrons who had physically limiting conditions that the Colorado River attraction was not suitable for them – Mountain Creek persuaded the jury that Colon violated the law and caused his own accident.

On appeal to the Third Circuit, Colon asserted eight arguments, including his objection to the trial court’s admission of evidence that he was convicted of soliciting a prostitute during the precise period he claimed that he was confined to his bed except for medical appointments, visits to his family and the like.  The Third Circuit found that this evidence was probative and not prejudicial and that Colon opened the door to such inquiry by testifying that he was totally disabled.  His appeal was denied and the judgment and jury verdict affirmed.  In an interesting twist, Colon was taxed with costs and his appeal is now the subject of a motion under the Federal Rules of Appellate Procedure by Mountain Creek seeking costs and sanctions because Colon’s appeal lacked merit and was patently frivolous.

Mountain Creek succeeded in establishing that Colon’s various arguments on appeal lacked merit and sidestepped the central issue presented at trial: whether Colon’s own conduct and violation of the rider responsibility law were the cause of  his accident.  None of his arguments, when compared with the jury’s verdict, compelled a conclusion that the jury was unduly prejudiced or tainted with respect to the evidence with which Colon took issue.

Carla Varriale and Tara C. Fappiano represented Mountain Creek.

1.The Rider Responsibility law (and ASTM F770-93, which was expressly adopted by and incorporated into it pursuant to N.J.A.C. 5:14(A)) unequivocally mandates that there are inherent risks associated with these sorts of attractions.  At 5.1:  “Patron Responsibility”, it provides that patrons accept the ordinary risk and have a duty to exercise good judgment while using the amusement device and to obey all warnings and instructions including prior to participation, it was correct for the trial court to permit this testimony. Consequently, New Jersey law unequivocally requires that riders of water park attractions obey all written warnings and directions posted at attractions.  The Rider Responsibility law provides that:  “State law requires that each rider must obey all written warnings and directions regarding this ride and refrain from behaving in a reckless manner which may cause or contribute to injury to the rider or others.  Failure to comply is a violation of law and subject to penalty under the New Jersey Code of Criminal Justice pursuant to N.J.S.A 5:3-36.1.  Violators may be subject to a fine of up to $1,000 and imprisonment of up to six months.”  See, N.J.A.C. 5:14A-9.33(d)(1).

Gary Kallem and Victoria Kallem  v. Thomas Mandracchia and Jackson Hole Diner
Supreme Court, Queens County,
Index No.:  2292/2010
January 9, 2012

Judge Dismisses Claims Against Diner Arising From Parking-Lot Accident

Justice Sidney F. Strauss has granted summary judgment in favor of the defendant Jackson Hole Diner, and dismissed all claims against it.

In this case, the plaintiff Gary Kallem sought damages arising out of an accident on October 26, 2010, when he was struck by a vehicle owned and operated by the defendant, Thomas Mandracchia, as Mr. Mandracchia was exiting the parking lot of Jackson Hole Diner. The plaintiffs alleged that the diner was negligent in its control of the lot, specifically in failing to properly control the flow of traffic in and out of the lot. Mr. Kallem allegedly sustained very serious injuries, including loss of vision, brain damage, and various fractures in the face, nose, and skull, as well as the right arm. He also claimed tears of the ligaments in the right knee. 

Jackson Hole Diner moved for summary judgment on the grounds that it did not owe the plaintiff any duty, in that the accident occurred outside the lines of its property, and it did not have any duty to control the flow of traffic on the abutting sidewalk, pursuant to either the common law or under any statutory or other authority. The Court agreed.  Justice Strauss concluded that the plaintiff failed to raise a question as to the location of the accident, since Mr. Kallem testified that the accident occurred on the sidewalk, and identified the location in photographs. Further, his wife and driver of the vehicle both confirmed the accident happened on the sidewalk. Thus, it was undisputed that the accident did not occur in the parking lot or the apron cut of the parking lot.

In addition, the Court declined to consider an expert affidavit relied upon by the plaintiffs in opposition to the motion. The Court stated that the expert had not been identified by the plaintiffs until after the note of issue had been filed, was submitted only in response to the motion, and plaintiffs offered no valid excuse for the delay. 

Jackson Hole Diner was represented by Tara C. Fappiano

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