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HRRV in the Courtroom 2013

Shlomo Eliezer Shalomoff and Valarie Shalomoff v Sterling Doubleday Enterprises, et. al.
Supreme Court, Queens County
Index No. 1120/13
December 10, 2013

Baseball Stadium and Operator Found Not Liable for Infant Plaintiff’s Accident When he Was Struck By a Foul Ball During a New York Mets Game Where he Assumed The Risk

Plaintiffs asserted claims against Sterling Doubleday Enterprises, L.P., Sterling Mets, L.P., New York Metropolitan Baseball, Inc. and Queens Ballpark Company, L.L.C. for common law negligence and Res Ipsa Loquitur.  During the 9th inning of a New York Mets vs. Florida Marlins game, infant plaintiff (who was twelve years old at the time of the accident) was struck by a foul ball that entered the right field stands. Plaintiffs alleged that defendants were negligent in maintaining and operating the Citi Field baseball Stadium by permitting the occurrence to happen and not taking suitable and reasonable precautions.

Defendants served a pre-answer motion to dismiss, contending that infant plaintiff clearly appreciated the obvious and inherent risk of injury associated with attending a baseball gamed. Defendants annexed a YouTube video that depicted the accident- and the infant plaintiff holding a baseball glove, ready to catch an errant baseball in support of this point. Defendants demonstrated that the requisite protected area behind home plate was provided and plaintiffs did not avail themselves of the same. Justice Duane A. Hart, sitting in Supreme Court, Queens County, found that defendants established that the negligence action should be dismissed because infant plaintiff assumed the risk of injury from an errant baseball.  There is no duty of care owed to spectators who occupy seats in the unprotected areas.

Carla Varriale represented Sterling Doubleday Enterprises.

Tara and Kevin Grigg v. Splish Splash at Adventureland, Inc., Palace Entertainment, Festival Fun Parks, LLC, Proslide Technology, Inc. and Express Construction Corp.
Supreme Court, Suffolk County
Index No. 10458/08
December 5, 2013

Water Park Patron Held to Have Assumed the Risk of Injury

HRRV obtained summary judgment for in a lawsuit arising out of an accident on an attraction known as “Splash Landing” at the Splish Splash water park. Plaintiffs also sued the Splash Landing manufacturer, ProSlide Technology, Inc. and asserted common law negligence claims.

Plaintiff Kevin Grigg claimed that he sustained serious personal injuries (including a fractured wrist and reflex sympathetic dystrophy) when he reached the exit pool of the Splash Landing attraction and observed his young daughter slip out of their tube and into pool. When he tried to exit the tube to assist her, he lost his footing, fell sideways, and stuck his left hand on the side of the pool. He claimed that the bottom of the pool (which was two feet deep) was more slippery than any other pool he had been in, but he did not observe any algae, dirt, debris or other substance on the bottom of the pool. He also asserted that the surface of the pool was inadequate and that it had been negligently designed and manufactured.

Justice Peter H. Mayer held that defendants presented sufficient evidence that Kevin Grigg, an adult, understood and voluntarily assumed the risks inherent in riding the Splash Landing. Moreover, defendants established that they did not have actual or constructive notice of the conditions complained of by plaintiffs and that they met their duty to maintain the premises, particularly the Splash Landing ride, in a reasonably safe condition. In opposition, plaintiffs failed to raise triable issues as to the existence of a dangerous condition over and above the risk inherent in riding the water slide, or whether Splish Splash engaged in any conduct that unreasonably increased or concealed the alleged danger. The Court also found that plaintiffs’ expert Mr. Arthur Mittelstaedt, Jr.’s conclusions about the surface of the pool to be generalized, conclusory, and lacking an independent factual basis so that his Affidavit was insufficient to defeat a motion for summary judgment.

Carla Varriale represented Splish Splash at Adventureland, Inc., Palace Entertainment and Festival Fun Parks, LLC.

Coronado v. 3479 Associates, LLC
Supreme Court, Bronx County
Index No. 0300748/11
November 21, 2013

Building Owner Not Liable for Injuries Caused by Superintendent Held to Be Acting Outside the Scope When Fighting With Tenant

Plaintiff asserted claims against a building owner for vicarious liability, negligent hiring and retention, and failure to provide adequate building security in connection with an alleged assault perpetrated by the superintendent of the building against the plaintiff. It is undisputed that the physical altercation between the two men occurred in the lobby, after two Chinese food deliverymen who were buzzed into the building had left. An argument began between plaintiff and the superintendent stemming from disparaging comments made by the superintendent about the deliverymen.

Justice Edgar Walker, sitting in Supreme Court, Bronx County, found that there were no issues of fact over the fact the superintendent was acting outside the scope of his employment when the incident occurred. Specifically, he was not acting in furtherance of his employer’s business, but as a tenant of the building who heard loud noises in the hallway. As such, the Court concluded that the building owner was not vicariously liable. Further, there was no dispute that inadequate security played no role in the incident. As to the negligent hiring and retention theory, the Court concluded that the plaintiff failed to raise any questions of fact. While the two men had had prior verbal disputes about heating issues and the superintendent’s job performance, there was no evidence of any issues or altercations with any other tenants, or a violent propensity.

Tara C. Fappiano and Lindsay R. Kaplow represented 3479 Associates, LLC, the building owner.

Nielsen v. 300 East 76th Street Partners, LLC
Appellate Division, First Department
Index 109538/09
November 7, 2013

Appellate Division Finding of No Specific Statutory Violation Results in Reversal and Granting of Summary Judgment for Out of Possession Landlord

Plaintiff, an employee of MBRP Rest. Inc. (“MBRP”), was injured while working in the bar operated by MBRP on premises owned by 300 East 76th Street Partners, LLC (“300 East”) and leased to MBRP. Pursuant to the lease agreement, 300 East retained only a limited right of reentry. Plaintiff alleged that she sustained injuries when descending a ladder accessed through a hatch door behind the bar counter, when she lost her balance, reached up to grab the floor, and the hatch door closed on her hand. She commenced a negligence action against 300 East, alleging that it failed to keep the premises reasonably safe and in good repair.

300 East moved for summary judgment arguing that plaintiff was unable to establish a violation of any statutory provision or building code, which could potentially hold 300 East, an out-of-possession landlord, liable. Plaintiff argued that 300 East did not qualify as an out-of-possession landlord which could avoid liability in this instance, and even so, there existed questions of fact as to the structural integrity of the hatch structure. Plaintiff retained an expert, but was unable to allege that the hatch structure violated a specific statutory or administrative building code provision. Nevertheless, the Supreme Court denied 300 East’s summary judgment motion, holding that 300 East failed to establish that the unsecured door of the metal hatch was not a structural defect, principally relying on the First Department decision in Brignoni v. 601 West 162 Associates, LP, 93 A.D.3d 417, 939 N.Y.S.2d 418 (1st Dep’t 2012), which actually post-dated oral argument on the motion.

300 East moved to reargue citing to the Supreme Court’s misapplication of Brignoni. The court granted reargument, but adhered to its original decision holding that there existed questions of fact as to the whether the hatch structure was safe.

300 East appealed, arguing that the Supreme Court incorrectly relied upon Brignoni, which involved a plaintiff falling through a closed rather than open trap door, and thus was factually distinguishable and inapplicable. New York courts have consistently held that an out-of-possession landlord with a limited right of reentry like 300 East cannot be held liable in the absence of a significant structural defect in violation of a specific statutory violation, which was precisely the case here. See Lopez v. Chan, Kamaran Grocery, 102 A.D.3d 625, 959 N.Y.S.2d 67 (1st Dep’t 2013); see also Kittay v. Moskowitz, 95 A.D.3d 451, 944 N.Y.S.2d 497 (1st Dep’t 2012);  Drotar v. 60 Sweet Thing, Inc., et al., 106 A.D.3d 426, 964 N.Y.S.2d 150 (1st Dep’t 2013).

The Appellate Division, First Department agreed and unanimously reversed the Supreme Court’s denial of defendant’s motion for summary judgment. The Court found that 300 East established it was an out-of-possession landlord with no duty to perform non-structural repairs. The court held “it is undisputed that neither the ladder nor the hatch door violated any specific statutory provisions, and plaintiff submitted no evidence of another type of industry-wide standard applicable to the case. Thus, whether defendant had notice of a defective condition in either the ladder or the hatch door is immaterial.” The case was dismissed.

Steven H. Rosenfeld represented 300 East 76th Street Partners, LLC.

Balka v. JMED Holdings, LLC
Supreme Court, New York County
Index No. 104039/09
October 18, 2013

Jury Rejects Night Club Patron’s Transient Condition Claim

Tara Balka alleged that at approximately 3:30 am, on November 2, 2008, while a patron at Pacha, a Manhattan night club operated by defendant JMED Holdings, LLC, she was injured when she tripped and fell on debris, specifically a plastic bottle, while descending a staircase leading to the lower level of the venue. As a result of her fall, Ms. Balka sustained a trimalleolar fracture to her left ankle necessitating an open reduction, internal fixation.

At trial, the plaintiff argued that she arrived at Pacha at approximately 10:00 pm to attend a Halloween event. Throughout the evening, she utilized the subject staircase on five occasions to access the bathrooms located on the lower level and each time she descended the staircase, the debris collecting on the steps became progressively worse. Moreover, she claimed that as the evening progressed, the venue became more crowded. Ms. Balka had identified two eyewitnesses, but only called one at trial. This witness corroborated Ms. Balka’s recollection of the condition of the staircase.

JMED argued that it did not have notice of the condition alleged to have existed on the staircase and that it took reasonable measures to control the debris condition on the subject staircase. Specifically, JMED was able to demonstrate that there were six porters assigned to the main level of Pacha and one was solely responsible for cleaning the two staircases that lead to the lower level, as well as the lower level lobby area. JMED also demonstrated that it took approximately 20 to 25 minutes for a porter to complete his rounds. In addition, JMED called plaintiff’s second identified eyewitness, who testified that he recalled porters working that evening and diligently cleaning the staircase. In addition, this witness testified that aside from some napkins on the staircase, he did not observe any other debris such as plastic bottles or cups.

The jury deliberated for approximately two and half hours and returned with a defense verdict.

Lawlor v. Thorner, Roadblock Bar Inc.,
Mulcahy's Pub and Roadblock Bar Inc.
d/b/a Mulcahy's Pub
Supreme Court, Nassau County
Index No. 6919/11
September 9,2013

Summary Judgment Granted to Pub in Premises Liability and Dram Shop Case

Danielle Lawlor was a patron Mulcahy’s Pub on January 4, 2011, occurring at Mulcahy’s Pub, a bar owned and operated by Roadblock Bar, Inc. (“Roadblock”), when she was suddenly struck in the head by a glass bottle allegedly thrown by eighteen-year old Amanda Thorner, who was involved in a dispute with another patron. Lawlor attempted to hold Roadblock liable for failing to keep her safe, alleging that the bar failed to provide adequate security, and violated General Obligations Laws 11-100 and 11-101, or more commonly referred to as New York’s Dram Shop Act, by unlawfully furnishing alcoholic beverages to her assailant, Thorner.

At the close of discovery, HRRV moved for summary judgment on behalf of Roadblock asserting that Roadblock did not have a duty to protect plaintiff from such a spontaneous unexpected criminal act by a third-party, and that Roadblock provided adequate security as a matter of law. It was argued that plaintiff could not establish a Dram Shop claim, since she could not demonstrate that Roadblock served her alleged assailant alcoholic beverages while at the premises. Plaintiff also argued that Roadblock was guilty of spoliation for failing to preserve the surveillance video from the night in question.

The court agreed that Roadblock demonstrated its prima facie entitlement to summary judgment. The court held that that plaintiff was injured as a result of a spontaneous, unexpected assault, and defendants had no reason to believe that Thorner posed a threat to any of the bar patrons prior to the alleged assault. Regarding plaintiff’s Dram Shop claims, the court held that in the absence of evidence that Thorner had been served alcohol by an employee of the bar, or that the sale of alcohol was the proximate cause of the assault, plaintiff’s Dram Shop claims were unsustainable. Finally, the court denied plaintiff’s spoliation claims, noting that defendants provided an affidavit from Roadblock owner, confirming that the surveillance video, while operational on the subject evening, did not depict the portion of the premises where the altercation ensued, and accordingly contained no evidence relevant to the suit. The court accordingly dismissed all of plaintiff’s claim’s against Roadblock.

Steven H. Rosenfeld represented Roadblock Bar, Inc.

Beard v. Themed Restaurants, Inc.
Supreme Court, New York County
Index No. 113057/11
August 25, 2013

Court Dismisses Inadequate Lighting Case Based on the Absence of Proximate Cause

Tiffany Beard alleged that on February 27, 2011, while she was a patron at Lucky Cheng’s, a restaurant operated by the defendant, she sustained personal injuries when she missed a step as she was descending an interior staircase leading to the women’s restroom.

The defendant argued that there was no evidence to support plaintiff’s claim of a structural defect and/or inadequate lighting. The testimony and supporting documentation, including the affidavit of our expert engineer, established that defendant did not violate any applicable statutory or building codes. In addition, the defendant argued that even assuming that the lighting was inadequate, there is no evidence to support the lack of lighting was the proximate cause of her injuries. Plaintiff specifically testified that she was looking directly forward immediately prior to her accident as she descended the subject stairs, rather than looking down at the stairs. Critically, plaintiff cannot attribute any inadequate lighting to her missing a step. Plaintiff testified that she did not trip on any debris or object on the steps, or even slip on any substance; rather, she testified that she simply missed a step. In support of this argument, we cited Christoforou v. Lown, 120 A.D.2d 387, 502 N.Y.S.2d 184 (1st Dept. 1986); Outlaw v. Citibank, N.A., 35 A.D.3d 564, 826 N.Y.S.2d 642 (2d Dep’t 2006); and Reyes v. City of New York, 29 A.D.3d 667, 668, 814 N.Y.S.2d 873, 874 (2d Dep’t 2006).

Justice Louis B. York, sitting in Supreme Court, New York County, granted defendant’s motion for summary judgment, noting plaintiff’s deposition testimony (which she attempted to change in an affidavit in opposition to defendant’s motion) that at the time of her fall, she was looking straight ahead and did not rely on the condition of the staircase she was traversing as she went forward. The court held that plaintiff’s testimony rendered any claim of inadequate lighting irrelevant and that lighting was not a proximate cause of plaintiff’s fall.

Steven H. Rosenfeld represented Themed Restaurants, Inc.

Namgalauri v. 80-90 Maiden Lane Del LLC
Supreme Court, Kings County
Index No. 4008/10
August 12, 2013

Summary Judgment Awarded to Maintenance Contractor in Slip and Fall

Nino Namgalauri, was an employee of a tenant of 80-90 Maiden Lane in Manhattan, when she slipped and fell from the top of a staircase while walking into the building on the way to work — either during or after a rainstorm. Servco Industries ('Servco") was a sub-contractor retained by property manager AM Property Holding Corp. ("AM") to provide certain maintenance functions at the premises, owned by 80-90 Maiden Lane Del LLC. Plaintiff asserted common law negligence claims. Servco and the other defendants moved for summary judgment on various theories.

Justice Debra Silber, sitting in Supreme Court, Kings County, granted summary judgment in favor of Servco, while denying summary judgment to all other parties. Servco argued, based upon the evidence in the record, that it contracted only with AM to provide maintenance services and was not in privity with plaintiff, who was also not a third-party beneficiary of the maintenance contract. The court agreed and held that no exceptions applied that held Servco to have assumed a duty of care to any non-contracting third persons. As such, the court dismissed all of plaintiff's claims asserted against Servco.

Steven Rosenfeld represented Servco.

Villani v. Thirsty Turtle, Tri-Kelly’s, Inc., 199-201 East Post Road, Inc, and Roger Jones
Supreme Court, Westchester County
Index No. 03125/08
August 8, 2013

Jury Rejects Bar Patron’s Claim of Assault and Negligent Security

Gerardo Villani alleged that while he was a patron at Thirsty Turtle, a White Plains bar owned by Tri-Kelly’s, he was assaulted and battered by a Thirsty Turtle security guard, defendant, Roger Jones, without cause or provocation. Specifically, plaintiff alleged that Mr. Jones, who he also alleged had a history and propensity towards violence, violently struck the plaintiff causing him to sustain various injuries to his face.

Plaintiff alleged that Tri-Kelly’s was negligent by failing to provide a safe environment for the plaintiff; allowing the plaintiff to be assaulted and battered; providing inadequate security; failing to provide appropriate precautions to protect the plaintiff from being assaulted on its premises; failing to train and provide a sufficient number of employees to properly safeguard patrons such as the plaintiff from violent acts on its premises; failing to hire competent employees; overreacting to the presence and activities of the plaintiff; and being negligent, reckless, and careless in not appropriately protecting the plaintiff from the violent act which occurred. Plaintiff also alleged that the defendants acted with malice and a wanton disregard for the his rights, safety and welfare, and with reckless indifference thereto.

Plaintiff claimed that Tri-Kelly’s had both actual and constructive notice – actual notice in that the condition and/or dangerous propensities of Tri-Kelly’s security personnel was allowed to remain; constructive notice in that Tri-Kelly’s knew or should have known of the propensities of its security personnel and allowed and permitted said dangerous condition to be and remain for a long and unreasonable length of time without correction or warning.

In sum and substance, Tri-Kelly’s contended that Mr. Jones’ conduct was outside the scope of his employment. Specifically, that at the time the assault and battery took place the plaintiff was across the street from the club; and Mr. Jones, acting for purposes of his own, departed from the line of his duty, so that for the time being his acts constituted an abandonment of his service to Tri-Kelly’s.

Mr. Jones, did not appear at trial, but had submitted an answer and testified at a deposition – essentially that he was acting in self-defense against plaintiff.

After hearing testimony from plaintiff, two eyewitnesses to the altercation, the manager of Thirsty Turtle and having been read portions of Mr. Jones’ deposition testimony, the jury found for the defendants – specifically that (1) there had not been a battery (the jury was not charged on assault) committed by Mr. Jones (rendering the question of whether he was acting within the scope of his employment academic); and (2) Tri-Kelly’s had not been negligent in the manner in which it supervised its employees on the night in question.

Of note is that the court issued PJI 2:55 – implied assumption of risk – based on testimony that the plaintiff was a willing participant in a number of altercations on the night in question. This conclusion was reached by the court on the applicability of the recent Appellate Division, First Department of Carreras v. Morrissania Towers, 2013 N.Y. App. Div. LEXIS 4808; 2013 NY Slip Op 4893 (June 27, 2013), ([B]ecause [plaintiff] willingly entered and continued to participate in the fracas, [he] severed the causal link between his injury and any negligence defendants may have committed….”).

One can only assume that the jury’s rejection of the battery claim and separate finding that Tri-Kelly’s was not negligent were each influenced by Mr. Jones’ claim of self-defense and the significant testimony depicting plaintiff’s behavior throughout the evening at Thirsty Turtle.

Steven H. Rosenfeld was trial counsel for Tri-Kelly’s, Inc.

William May and Jodi May v. Long Island Ducks Professional Baseball Club, LLC
Supreme Court, Nassau County
Index No. 601385/12
August 5, 2013

Plaintiffs Strike Out Again on Foul Ball Case

A judge sitting in the Supreme Court, Nassau County has concluded that patrons at a Long Island Ducks baseball game assumed the risk of injury as a result of a foul ball and that the defendant discharged its duty of care.

William May and Jodi May commenced an action in the Supreme Court, Nassau County against Long Island Ducks Professional Baseball Club, LLC (“the Ducks”) alleging that they were sitting in their seats, “watching and enjoying” a baseball game at the Ducks’ Stadium then known as Citibank Ballpark on July 25, 2009, when a batted ball from a player on the field struck plaintiffs in their respective faces, causing severe and permanent personal injuries. The plaintiffs alleged that the Ducks were negligent in failing to maintain the premises in a reasonably safe condition; in violating all applicable provisions of the Building Code of the State of New York and County of Suffolk and in failing to erect safety netting to protect the plaintiffs from batted balls from the field.

In response to the plaintiffs’ Verified Complaint, the Ducks moved to dismiss. The Ducks argued that it did not owe a duty of care to the plaintiffs and discharged its duty of care by providing the required protective netting behind home plate where the chance of injury was greatest and further the plaintiffs assumed the risk of injury. In support of its motion, the Ducks submitted an Affidavit from its General Manager, Michael Pfaff, who averred that the netting behind home plate extended from dugout to dugout, that the netting was inspected on a daily basis and was free from any defects and that although there was seating available behind home plate on the July 25, 2009, there were no records of any patrons requesting to have their seats moved to the protected area. Further, Mr. Pfaff averred that, warnings were provided over the public address system before the games warning patrons about the obvious dangers of objects entering the stands and that the back of the baseball tickets stated:

WAIVER OF LIABILITY; LICENSE: The holder of this ticket voluntarily assumes all risks and danger incidental to any game or exhibition for which this ticket is issued, whether occurring prior to, during or subsequent to the actual playing of the exhibition or game. Risk of injury exists at all times and may result from objects thrown or propelling from the field of play. The Long Island Ducks and the Atlantic League, and their subsequent officials, employees, players and representatives are not liable for injuries, expenses, claims or liabilities resulting from or related to events at Citibank Park. This ticket is a revocable license subject to termination with denial of admission at management’s discretion, without compensation, should the holder act in a disorderly manner or violate management’s rules and regulations.

RAIN POLICY: If less than 4 ½ innings (5 if home team trails) of this game are played, return this ticket at the Citibank Park Ticket Office and exchange for a ticket of equal or lesser value for any other regular season game in the 2009 season, based on availability.

NO CASH REFUND: Citibank Park rules prohibit any weapons, Food, cans, bottles, coolers, or chairs to be brought into the ballpark.

In opposition to the motion to dismiss, the plaintiffs simply argued that the motion was premature as discovery had not been completed and depositions had not yet been held.

Justice Roy S. Mahon converted the Ducks’ motion to a summary judgment motion and then granted the Ducks summary judgment. In his decision, Judge Mahon quoted and relied heavily upon the New York Court of Appeals decision in Davidoff v. Metropolitan Baseball Club, Inc., 61 N.Y.2d 996, 475 N.Y.S.2d 375 (1984) with regard to the standard of care owed to spectators at a baseball game.

In Davidoff, a negligence action brought by fourteen-year-old spectator who was injured by a sharply hit foul ball while she occupied a box seat located behind first base at Shea Stadium, the plaintiff’s action was dismissed because the defendants satisfied their limited duty of care. The Davidoff Court had noted that Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 441 N.Y.S.2d 644 (1981) (emphasis added), the seminal New York case on baseball field owner liability, held that a jury question may be presented “where the adequacy of the screening in terms of protecting the area behind home plate properly is put in issue.”

Furthermore, in Davidoff, the Court of Appeals held:

The rule suggested by plaintiff would require a baseball field proprietor to operate as an insurer of spectators unless there was a protective screen shielding every seat. We held in Akins that a proprietor should be allowed to satisfy the desires of the many spectators who prefer to view the game from a seat unobstructed by fences or protective screening. No sound reason has been shown why the rule of policy set forth in Akins should be changed.

Davidoff, 475 N.Y.S.2d at 368.

Carla Varriale and Lindsay Kaplow represented Long Island Ducks Professional Baseball Club, LLC.

Palmer v. Planet Fitness
Civil Court, Kings County
Index No. CV-026391-13/KI
July 30, 2013

Freelance Trainer's Suit Against Fitness Club Over Loss of Membership Dismissed

HRRV won a pre-answer motion to dismiss on behalf of Planet Fitness and a branch manager in a lawsuit brought by a former member who was providing unauthorized personal training sessions at the gym and whose membership was terminated as a result.

Plaintiff was observed, on several occasions, by Planet Fitness employees providing instruction and personal training to other members in violation of Planet Fitness’ policy prohibiting trainers not employed by Planet Fitness to personally train other individuals at a Planet Fitness gym. Plaintiff was warned that if he did not cease the unauthorized training, his membership with would be terminated.

After several warnings, plaintiff was captured on video surveillance training another member without authorization and his membership was terminated.

Plaintiff sued Planet Fitness and a branch manager (“Planet Fitness”) for breach of contract. Planet Fitness moved to dismiss the action and argued that plaintiff’s complaint must be dismissed in its entirety because plaintiff’s unsupported allegation of breach of contract was contradicted by the terms of the Planet Fitness Membership Agreement signed by the plaintiff. Additionally, with the support of affidavits from Planet Fitness employees, Planet Fitness established that plaintiff was notified on several occasions that he was in violation of Planet Fitness’ Policy and warned that if he did not cease this activity, his membership would be terminated.

Moreover, Planet Fitness argued that he complaint unquestionably failed to state a cause of action against Planet Fitness, as the defendants operated within their reserved rights under, and were in full compliance with, the Membership Agreement. Planet Fitness also argued that the plaintiff would not be able to establish the essential elements of a cause of action for breach of contract –. (1) the existence of a contract, (2) the plaintiff’s performance under the contract (3) the defendant’s breach of that contract, and (4) resulting damages. See JP Morgan Chase v. J.H. Elec. of New York, Inc., 69 A.D.3d 802, 893 N.Y.S.2d 237 (2d Dep’t 2010). See also Furia v. Furia, 116 A.D.2d 694, 695, 498 N.Y.S.2d 12 (2d Dep’t 1986).

Consequently, the court granted Planet Fitness’ motion to dismiss in its entirety.

Carla Varriale represented the defendants.

Bonnie French v. Hilton Hotels Corp.
Supreme Court, New York County
Index No. 114647/07
July 3, 2013

Allegedly Dangerous Condition Created by Non-Party Warrants Summary Judgment

This case arose from a pedestrian accident whereby the plaintiff, Bonnie French, claims that she tripped and fell on poster glue that had pooled on a sidewalk. She claimed that the glue had originated from posters that had been affixed to the fence surrounding an adjacent construction site.

During discovery, it was determined that the posters had been affixed by a non-party retained by an advertising agency which had been retained. by defendant Home Box Office, Inc. (“HBO”). In support of HBO’s motion for summary judgment, HRRV argued that a party is not responsible for its contractor's negligent acts, unless it (1) negligently selected, instructed or supervised the contractor; (2) engaged in work that is especially or inherently dangerous; or (3) was made responsible by a specific nondelegable duty, which may be created by statute, regulation or common law (Kleeman v. Rheingold, 81 N.Y.2d 270, 274 [1993]; Lopez v. Allied Amusement Shows, Inc., 83 A.D.3d 519, 520 [1st Dep't 2011]). The contractor, and not the principal party, is responsible for its own negligent acts because the acts are largely within the contractor's, and not the principal party's, control.

Justice Barbara Jaffe, sitting in Supreme Court, New York County, granted summary judgment in favor of HBO finding no evidence that HBO negligently selected, instructed, or supervised the company that put up the posters, or that the work was especially or inherently dangerous, or that the placing of posters constitutes a nondelegable duty. Accordingly, the court dismissed all claims against HBO.

Gail L. Ritzert represented the Home Box Office, Inc.

TKM Group, Inc., Individually, and on Behalf of M&O Enterprises, PSP v. Indian Harbor Insurance Company, WKF&C Agency, Inc., Program Brokerage Corp. and Stratford Insurance Agency, LLC.
Supreme Court, Nassau County
Index No. 014057/11
July 1, 2013

Wholesale Broker Granted Indemnification Against Retail Broker Pursuant to Brokerage Agreement

TKM Group, Inc. and M&O Enterprises (collectively “TKM”) commenced a declaratory judgment seeking to enforce and determine the rights of the plaintiffs under a policy of insurance and seeking to recover damages from the defendants, jointly and severally, arising out of their alleged negligence and breach of the insurance contract. Plaintiffs alleged that they suffered a loss, the destruction by fire of a building they owned, that they believed was covered by insurance they had purchased from Indian Harbor Insurance Company (“Indian Harbor”) through their retail broker defendant Stratford Insurance Agency (“Stratford”) that in turn utilized the services of a wholesale broker, Program Brokerage Corporation (“PBC”). Indian Harbor refused to pay the full amount of damages sustained by plaintiffs. Plaintiffs allege that they interacted with the defendants to procure the policy and to administer the Policy as a Forced Place Insurance Policy; that defendants represented to the plaintiffs the meaning and effect of the Policy terms; and that defendants induced Plaintiffs into believing they were purchasing and paying substantial consideration for a Policy of Forced Place Insurance. Plaintiffs contended Indian Harbor’s position was due to the joint conduct of Stratford and PBC in failing to procure the appropriate Forced Place Insurance Policy it requested.

In March 2009, PBC and Stratford had entered into a contractual brokerage agreement. The Brokerage Agreement between Stratford and PBC expressly provided as follows:

6. Broker [Stratford] agrees that it will hold PBC and PBC’s agents, officers, directors, and employees free and harmless and indemnify them from each and every claim, alleged errors and omissions, failure to submit surplus lines or other documentation (including, but not limited to, timely submission of affidavits, or faulty declinations) or taxes, or breach of contract caused by, or related to, the acts of Broker, its agents, servants, principals and employees, including fines, penalties, legal fees or costs that may reasonably be incurred by PBC in the defense of such claims to the full extent thereof, with interest thereon, until paid.

11. Broker [Stratford] acknowledges that PBC does not have a direct relationship with the insured. Broker agrees to carefully review all documents received from PBC and/or the carrier for accuracy, and to determine, among other things, whether the insurance policy and other documents are: (a) as requested; (b) adequate for the insured’s needs; and (c) consistent with other insurance issued to the insured for the policy period.

12. Broker [Stratford] shall be liable to PBC for all costs and damages, including attorney’s fees, incurred by PBC as a result of Broker’s violation of any terms of this Agreement.

In its cross-claim against Stratford, PBC demanded indemnification. That demand was denied. After discovery was exchanged, defendant PBC again wrote to Stratford and tendered PBC’s defense and indemnity obligations to Stratford on the basis of the Brokerage Agreement. When it received no response, PBC moved for summary judgment against Stratford, stating that the claims asserted by plaintiffs, and the damages sought from the defendants “jointly and severally” all stemmed from the services that they were provided by Stratford in procurement and the administration of the Policy. PBC therefore argued that the instant lawsuit constituted a “claim” “related to the acts of [Stratford]” Stratford within the meaning of the terms of the Brokerage Agreement. Stratford opposed the motion, arguing that PBC failed to establish entitlement to judgment as a matter of law and that PBC failed to show that Stratford agreed to indemnify it for claims arising out of PBC’s own alleged acts, omissions, breach of contract or misrepresentations.

Justice R. Bruce Cozzens, Jr. found that the evidence submitted by PBC established that the plaintiffs’ claims sufficiently related to the acts of the defendant Stratford to trigger the indemnification claims of the Brokerage Agreement. Judge Cozzens found that PBC met its burden of entitlement to summary judgment, granted PBC’s summary judgment motion in its entirety and directed that an inquest on the issue of PBC’s legal fees be held at trial.

Abbie Havkins represented Program Brokerage Corp.

Caterpillar Insurance Company v. Metro Construction Equities
Supreme Court, Queens County
Index No. 25413/10
June 7, 2013

Court Upholds Disclaimer Based on Insured’s Refusal to Sign Proof of Loss

On or about August 6, 2008, Caterpillar Insurance Company (“Caterpillar”) issued a contractors equipment property policy containing an equipment endorsement for leased, rented or borrowed machines to defendant Metro Construction Equities (“Metro”). Shortly thereafter, Metro leased a 2004 Daewoo Excavator Solar from Hoffman and used it on its construction site in Jamaica, New York. The equipment was subsequently damaged when it rolled onto its side. Metro notified Hoffman, which sent a crew to the site, retrieved the machine and transported it back to its shop for repairs.

On or about October 16, 2008, Metro tendered a claim for coverage to Caterpillar under its policy for the damaged equipment. Hoffman repaired the equipment and proffered the invoice for the repairs to Caterpillar. After an inspection by its claims adjuster, Caterpillar approved a final invoice for $25,835.29 for the equipment and, pursuant to the terms of the Policy, asked Metro to sign and notarize the Proof of Loss before it released the funds for the payment to Hoffman. Caterpillar sent a letter to Metro requesting that Metro sign and notarize a Proof of Loss Form and sign an Authorization to Pay Dealer Direct Form. The forms were enclosed. Metro refused to sign the Proof of Loss because it believed that Hoffman’s equipment should have been totaled. In the following months, Caterpillar sent numerous letters to Metro requesting that it sign the requisite forms, to no avail.

The terms of the Caterpillar policy provided that the insured had 60 days to return the Proof of Loss form and Authorization to Pay Dealer Direct form to its insurer. On or about August 25, 2009, after more than 180 days had elapsed since Caterpillar sent its first request to Metro for the signed forms, Caterpillar issued a denial of coverage letter to Metro, citing the failure to sign the required Proof of Loss within the sixty day time limit prescribed by the Policy as the reason for the disclaimer of coverage.

Subsequently, Caterpillar made another attempt to resolve the dispute with Metro and issued yet another offer to Metro to sign the documents. The letter made specific reference to a section in the Policy which required that Metro “[c]ooperate with [Caterpillar] in the investigation or settlement of the claim.” Metro again refused.

Caterpillar commenced a declaratory judgment against Metro, seeking a judicial declaration that defendant Metro was barred from seeking coverage under the policy due to its failure to comply with the terms and conditions set forth in the policy. Metro counterclaimed alleging unfair claim settlement practices and deceptive acts and practices under Insurance Law §2601(a) and general Business Law §349, as well as tortious interference with its contract with Hoffman.

Caterpillar moved for summary judgment and dismissal of Metro’s counterclaims against it and for a declaration that Metro was barred from seeking coverage under the Caterpillar policy due to its failure to comply with the terms and conditions. Caterpillar alleged that the evidence undisputedly established that the terms of Caterpillar’s policy required that Metro send Caterpillar a signed, sworn statement of proof of “loss” within 60 days of Caterpillar’s request, Caterpillar duly sent Metro multiple requests for the requisite documentation and Metro refused to comply with the request.

Caterpillar argued that pursuant to Insurance Law § 3407, where an insurance policy requires a sworn statement of proof-of-loss, an insured's failure to properly swear to the contents of a proof-of-loss statement is an absolute bar to their claim on the policy. Metro’s failure to provide the documents was therefore an absolute defense to an action on the policy. Caterpillar also argued that Metro’s counterclaim that Caterpillar engaged in unfair claim settlement practices and that it wrongfully attempted to negotiate settlement of claims with a third party was contrary to the terms of the policy which stated that Caterpillar was permitted to “adjust losses with the owners of lost or damaged property if other than you.”

Metro cross-moved for summary judgment, alleging that Caterpillar was estopped from relying on Insurance Law §3407 because the proof of loss forms it provided to Metro were not blank but rather filled in. Metro also alleged that Caterpillar engaged in unfair claim settlement practices in contravention of Insurance Law §2601(a) when it tried to force Metro into a settlement with which it did not agree.

The court found that although the forms sent by Caterpillar were not blank, they nonetheless satisfied the requirements of the Insurance Law. The court cited to the proposition that substantial compliance with proof of loss requirements is sufficient for the insured and here no more than substantial compliance from the insurer was necessary. Caterpillar was not estopped from asserting a failure to comply with the proof of loss requirement as a breach of the policy, particularly considering that Metro did not submit proof that it had a valid basis for disputing the loss as calculated by Caterpillar.

The Court also found that Caterpillar demonstrated entitlement to dismissal of the counterclaims against it. Judge Dufficy agreed with Caterpillar that the terms of the policy specifically provided the insurer with a contractual basis for negotiating settlement directly with the owner of the damaged equipment. Moreover, as argued in Caterpillar’s opposition to Metro’s cross-motion, Insurance Law §2601(a) did not give rise to a private cause of action and the General Business Law §349 did not apply to private contractual disputes.

Caterpillar’s motion for summary judgment on its complaint was therefore granted and Metro’s motion for the same relief denied. The counterclaims against Caterpillar were dismissed and Caterpillar was found to have validly disclaimed coverage under the policy.

Abbie Havkins represented Caterpillar Insurance Company.

Lehman v. Ukus Balkan Pie and Grill
Supreme Court, Queens County.
Index No. 29512/2009
May 24, 2013

Slip and Fall Claim Against Building Owner Dismissed

Plaintiff Joanne Lehman commenced an action against restaurant Ukus Balkan Pie and Grill, and against Paul and Gina Argento, the owners of the building in which the restaurant was located. Plaintiff claimed that she was injured when she tripped over a metal hasp on closed cellar doors, while she was reading a menu posted in the front window of the restaurant. Plaintiff alleged that the placement of the menu in the window and the location of a nearby planter forced her to walk across and stand on the cellar doors in order to read the menu.

The Argentos moved for summary judgment, arguing that they did not create the condition, had no notice of any dangerous condition, and in fact were out-of-possession landlords who did not owe the plaintiff a duty. Further, the Argentos argued that the restaurant alone was responsible for the placement of the sign in the window, as well as the location of the planter. Additionally, the Argentos showed that the restaurant had exclusive control over the cellar doors pursuant to the lease.

Justice Roger Rosengarten, sitting in Supreme Court, Queens County, in his decision granting the summary judgment motion, dismissed all claims against the Argentos, while denying the restaurant's motion for summary judgment due to issues of fact. Justice Rosengarten went on to award the Argentos reimbursement of reasonable attorneys' fees and costs incurred in defending the action.

Tara C. Fappiano represented Paul and Gina Argento.

Giaconne v. Realty Income Corporation, Palace Entertainment, Inc. and Festival Fun Parks, LLC,
Supreme Court, Suffolk County
Index No. 10-23421
May 13, 2013

Summary Judgment Granted to Family Entertainment Center Based on Trivial, Non-Actionable Defect

Plaintiff Barbara Giaccone alleged that on August 30, 2009, while at the Boomers! , a family entertainment center located in Medford, New York premises at 655 Long Island Avenue, she was "caused to be propelled to the ground" and sustained personal injuries.  Specifically, it was alleged that she fell to the ground when she tripped and fell over a raised, uneven, chipped and broken cement walkway which constituted a dangerous and defective condition.

In defending Boomers!, however, HRRV demonstrated  that the alleged defect in the walkway, if any, was trivial and open and obvious. The plaintiffs alleged that the height differential was approximately two inches, but the height differential was established by Boomers! and its engineering expert to be a mere 7/8 to 5/16th of an inch The court agreed with Boomers! and held that the walkway had “minor racking” at best.

The court further noted that when considering all the characteristics and circumstances of the accident, appearance of the defect, time place and circumstances of the injury, as a matter of law, the claimed defect was too trivial in nature to be actionable as a trap or a snare. Those factors cited by the court included the weather conditions at the time of the accident (they were clear and dry), plaintiffs’ admissions that she did not observe the alleged defect until after the accident and that her husband, who was with her, did not observe the accident.

Additionally, the Court found that Boomers! purported negligence was not the proximate cause of the plaintiff tripping, but instead the plaintiff’s failure to observe where she was going and her failure to observe an open and obvious condition was the cause of the accident. Finally, plaintiffs’ failure to proffer an engineering expert meant that the findings of Boomers! engineering expert, Jacques P. Wolfner, P.E.., were unrebutted. Therefore, Boomers! was entitled to summary judgment as a matter of law.

Carla Varriale represented Festival Fun Parks, LLC.

Israel Rodriguez v. Penske Truck Leasing Company, Reyes Holdings, LLC, The Martin-Brower Company, LLC, McDonalds’s Restaurants of New York, Inc. and Philip Callachan
Supreme Court, Bronx County
Index No. 303628/12
May 8, 2013

HRRV Wins Pre-Answer Motion to Dismiss on Behalf of Vehicle Lessor and Lessee

In a personal injury action arising out of a motor vehicle accident in the Bronx, HRRV won a pre-answer motion to dismiss on behalf of defendants Penske Truck Leasing Company (“Penske”) and McDonalds’s Restaurants of New York, Inc. (“McDonalds”). Briefly, plaintiff alleged that defendants were negligent in the operation of their vehicle and that he sustained a “serious injury” as defined in subsection (d) of section 5102 of the New York State Insurance law. Plaintiff claimed, among other things, that the defendant driver was acting within the course of his work for defendant McDonald’s, and as a servant, agent, and employee of defendant McDonald’s.

McDonald’s and Penske moved for immediate, pre-discovery summary judgment, on the grounds that McDonald’s had no involvement in the operation, maintenance or control of the vehicle and did not direct, supervise or employ the driver of the vehicle. Defendants further argued for dismissal of the claims against Penske based upon the fact that Penske was the mere lessor of the vehicle involved in the alleged motor vehicle accident and as a mere lessor should be protected from liability pursuant to 49 U.S.C. section 30106, commonly referred to as the Graves Amendment.

In opposition, plaintiff essentially contended that summary judgment was premature, as discovery necessary to oppose the motion was entirely in the possession of the defendants. Moreover, plaintiff argued that depositions were necessary because plaintiff ‘cannot cross-examine’ an affidavit.

The court was not persuaded by plaintiff’s arguments and granted defendants’ motion, noting that plaintiff had failed to rebut the evidence submitted that McDonald’s did not own, lease, rent, or exercise any control over the delivery vehicle involved in the accident, or that it hired or otherwise exercised any control over the vehicle’s driver. Similarly, the court noted that the undisputed evidence submitted on behalf of Penske established that it was a mere lessor of the delivery vehicle and could not be found liable in light of the Graves Amendment’s prohibition against vicarious liability. Lastly, the court held that although plaintiff had argued defendants’ motion was premature, he had failed to establish how discovery would lend merit to his case.

Carla Varriale represented Penske and McDonald’s.

Tarantino v. Queens Ballpark Company, L.L.C.
Supreme Court, Queens County
Index No.8674/12
April 12, 2013

Court Applies Assumption of Risk Doctrine in Dismissing Case Involving Spectator Injured by Foul Ball in Luxury Box Suite

Spectators at sporting events generally assume the obvious, inherent risks arising out of the activity. However, in a recent spectator injury case, New York’s Supreme Court, Queens County dismissed an action against the venue, the team, the architect, the concessionaire and others based on an improbable set of circumstances. The plaintiff alleged that while he was seated at a table inside a luxury suite watching a basketball game on television, he was suddenly struck by a foul ball. The foul ball was purportedly able to enter the suite because a waitress employed by the concessionaire left a window open. The luxury suite is located on the Empire Level of the Stadium, above the requisite protective netting that was provided behind home plate. Although the plaintiff reasoned that the suite was located behind home plate, the Court noted that it was a tier above the field. In other words, there was no duty to provide protective netting in the upper tier.

Based upon the doctrine of the assumption of an open and obvious condition, the Court determined that the allegations in the complaint were not sufficient to allege that any of the defendants breached any duty of care owed to the plaintiff. Rather, the defendants’ duty was to make the conditions as safe as they appeared to be. The Court further noted that risks of the activity which are fully comprehended or perfectly obvious are deemed to be consented to by the plaintiff and, hence, the defendant has performed its duty with respect to those risks. The Court found that the duty was fulfilled by providing sufficient screening behind home plate, where the danger of being struck by a ball or a bat is the greatest. Because the plaintiff was not seated in a protected area, there was no duty to insure his safety in this unprotected area of the Stadium.

The fact that plaintiff was seated in a luxury suite (as opposed to a different part of the stands) did not impact the Court’s application of the assumption of the risk doctrine. The risk of injury by an errant baseball was commonly appreciated—the plaintiff was in attendance at the baseball game, the fact that the plaintiff may have been distracted by the basketball game on television did not obviate the assumption of the risk doctrine. Accordingly, the Court dismissed each of the plaintiff’s claims..

Carla Varriale represented Queens Ballpark Company, L.L.C., Sterling Mets, L.P., Sterling Mets Operations, L.L.C., Sterling Project Development Group, LLC, Sterling Equities, Inc., New York City Industrial Development Agency and The City of New York

Hernandez v. Alstom Transportation Inc., et al
Supreme Court, Queens County
Index No.: 20234/10
March 7, 2013

Court Dismisses Claim of Train Inspector Against Third-Party Contractors Citing Lack of Presence and Proximate Cause

Plaintiffs Victor and Teoista Hernandez commenced a personal injury action in Supreme Court, Queens County against defendants Alstom Transportation Inc., (“Alstom”), Alskaw LLC (“Alskaw”) and Panasonic Avionics Corporation (“Panasonic”). Plaintiff Victor Hernandez, a train operator for the New York City Transit Authority, was allegedly injured while at work at the Fresh Pond Yard. Specifically, plaintiff alleged that he was inspecting a train when he was struck by a shoe paddle that had been propped into a conductor’s cab door.

Alstom and Alskaw moved for summary judgment to dismiss the Verified Complaint against them arguing that they were third-party contractors and thus, owed no duty to the plaintiff. Additionally, Alstom and Alskaw argued that they neither created nor had notice of the alleged dangerous condition which caused plaintiff’s accident, and that such condition was not the proximate cause of plaintiff’s alleged injuries.

In support of their motion, Alstom and Alskaw submitted the Affidavit of Alstom’s former Quality Inspector, John Shea, who averred that at the time of the alleged accident, Panasonic was performing updates to the NYCTA subway trains located at the Fresh Pond Yard. The modifications were supervised by a representative from NYCTA. Mr. Shea also stated that no employees of Alstom and Alskaw were present on the night of the alleged accident. Thus, the evidence establishes that only Panasonic and NYCTA were present on the night of the accident.

In granting Alstom and Alskaw’s motion for summary judgment, Judge Sidney Strauss held that the evidence establishes that since Alstom and Alskaw were not present at the train yard on the night of the accident, the plaintiff cannot establish that any of their actions were the proximate cause of the accident. 

Lindsay Kaplow represented defendants Alstom and Alskaw.

Brito v. 129 Wadsworth Company and Alma Realty Corp.
Supreme Court, New York County
Index No. 108775/2010
January 8, 2013

Court Finds that Defendant did not Have Notice of an Alleged Defect and that the Alleged Defect Constituted a Trivial Defect

Plaintiff Angela Maria Brito claimed that she was injured as a result of tripping and falling due to an alleged defective condition existing in the vestibule area of the building located at 129 Wadsworth Avenue, New York, New York. The plaintiff claimed that she was injured as a result of the defendant’s negligent ownership, maintenance and operation of the subject building.

In support of their summary judgment motion, defendants argued on the motion that the alleged defect was trivial, and that the defendants had no prior notice of the alleged defect. Justice Milton Tingling, sitting in Supreme Court, New York County, concluded that defendants met their burden of proof and that they were entitled to summary judgment, including through the affidavit of an expert engineer. Justice Tingling found that the plaintiff failed to raise any triable issues of fact to defeat the motion and that the defendant met its burden of proof to entitlement to summary judgment relief.

Tara C. Fappiano represent the defendant.

Figueroa v. Reclaim Housing Development Fund Corporation, et al,
Supreme Court, Bronx County
Index No. 350624/10
January 4, 2013

Summary Judgment Granted in Radiator Case

Plaintiffs claimed that a four-year-old infant plaintiff sustained injuries when he fell onto an exposed metal piece protruding from an uncovered radiator in the plaintiffs' apartment. The infant-plaintiff was playing in the bedroom with his sister, when he fell onto the metal piece, sustaining a deep laceration to his lower back. The infant-plaintiff received stitches, and made claims of permanent scarring and disfigurement.

Plaintiffs testified that the radiator covers had been removed by contractors hired by the landlord, and were never replaced despite the plaintiffs’ requests for new covers. The building’s property manager testified that it was, in fact, the plaintiffs who removed the covers and disposed of them. He also explained that the metal piece was not a defect, but was the metal clip designed to hold on the radiator cover, and therefore was a component of the radiator itself.

Despite these conflicting accounts relating to the radiator covers, defendants moved for summary judgment. Defendants argued that the landlord had no duty to provide radiator covers in the first place, and that the metal piece was not a defective condition, but merely a piece of the radiator itself. Defendants relied primarily on two controlling cases in support of the motion, Rivera v. Nelson Realty, LLC,7 N.Y.3d 530 (2006) and Rodriguez v. City of New York,799 N.Y.S.2d 195 (1st Dept. 2005).

Justice Allison Tuitt, in her decision granting the summary judgment motion, agreed with defendants’ arguments, and cited to both of these controlling cases in her decision. She found that the landlord had no duty to provide radiator covers in the apartment, and that there was no evidence of any defect as the metal clip was a piece of the radiator itself. Thus, plaintiffs’ complaint was dismissed in its entirety.

The defendants were represented by Tara C. Fappiano.

Marrero v. The City of New York
Appellate Division, First Department
2013 Slip Opinion 00015
January 3, 2013

New York Appellate Court Rejects Mosh Pit Injury Claim

New York’s Appellate Division, First Department, which hears appeals from the trial courts sitting in New York and Bronx Counties, has affirmed a New York County Judge’s decision rejecting 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, as well as the City of New York, 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 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 the defendants were 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.

Initially, 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.

In affirming the dismissal by Justice Rackower, the Appellate Division held that the defendants had met their initial burden of showing that they provided security measures, specifically noting the security plans, meetings and number of personnel present in light of the number of concert attendees. Additionally, the court noted that contrary to the plaintiff’s contention, there was no evidence in the record to show that the identified person who shoved him was actually engaged in dangerous moshing or slam dancing. The court referred to the plaintiff’s own testimony – he stated that he was unsure whether his injury was due to an intentional push or someone simply bumping into him – and noted that in either case, the unidentified party caused plaintiff’s fault and under the circumstances, the defendant could not be held liable for such unforeseen conduct.

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

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