Opinion
20516/2016E
06-15-2020
Marilyn BUTLER, Plaintiff, v. MET FOODS, 642 Vegs. & Meat Corp., 642 Vegs. & Meat Corp. d/b/a Met Foods, and Jhonny Cordero, Defendants.
Plaintiff is represented by Erica B. Tannenbaum, Esq., Cellino and Barnes, 420 Lexington Ave Fl 21, New York, NY 10170. Defendants Met Food, 642 Vegs. & Meat Corp., 642 Vegs. & Meat Corp. d/b/a Met Foods is represented by Allen Kohn, Esq., Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP, 39 Broadway, Suite 950, New York, NY 10006. Defendant Jhonny Cordero is represented by Samuel Viruet, Esq., Law Offices of Samuel Viruet, 183 E. 163 St., Bronx, NY 10451.
Plaintiff is represented by Erica B. Tannenbaum, Esq., Cellino and Barnes, 420 Lexington Ave Fl 21, New York, NY 10170.
Defendants Met Food, 642 Vegs. & Meat Corp., 642 Vegs. & Meat Corp. d/b/a Met Foods is represented by Allen Kohn, Esq., Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP, 39 Broadway, Suite 950, New York, NY 10006.
Defendant Jhonny Cordero is represented by Samuel Viruet, Esq., Law Offices of Samuel Viruet, 183 E. 163 St., Bronx, NY 10451.
Llinét M. Rosado, J.
BACKGROUND
The plaintiff commenced this action seeking damages for personal injuries as a result of an assault which is alleged to have occurred on June 7, 2015 at Met Food Supermarket ("supermarket") located at 649 Jackson Avenue, Bronx, New York.
The plaintiff sustained injuries due to a physical fight between the plaintiff and Jhonny Cordero, the co-defendant. In the course of the physical fight, the co-defendant struck the plaintiff's face with a stick and allegedly ruptured her eye. As the submitted security camera footage captured the physical fight, there are no material disputes regarding what, where, and how the plaintiff was injured during the fight.
MET FOODS, 642 VEGS. & MEAT CORP., 642 VEGS. & MEAT CORP. d/b/a MET FOODS (the "moving defendant") moves for an order granting summary judgement in its favor and dismissing the plaintiff's complaint against the moving defendant pursuant CPLR section 3212.
The moving defendant submits a copy of the pleadings, the depositions of the plaintiff, the co-defendant, Brine Diaz, and Asael Diaz, and the affidavit of Brine Diaz. The plaintiff submits an attorney's affirmation in opposition, and the moving defendant submits an attorney's affirmation in reply.
DISCUSSION
"For summary judgment to be granted, the moving party must make a prima-facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. ( Alvarez v. Prospect Hosp. , 68 NY2d 320. 324; 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). If the moving party produces the required evidence, the burden shifts to the nonmoving party "to establish the existence of material issues of fact which require a trial of the action." (Vega v. Restani Constr. Corp., 18 NY3d 499, 503, 542 N.Y.S.2d 923, 501 N.E.2d 240, quoting Alvarez , 68 NY2d, at 324, 508 N.Y.S. 923, 501 N.E.2d 572 )." Xiang Fu He v. Troon Management, Inc. , 34 NY3d 167 (2019).
In this case, the plaintiff raised three issues: whether (1) the co-defendant is an employee of the moving defendant rendering the moving defendant liable to the plaintiff for the co-defendant's assault; (2) the supermarket is located in a bad area where there is a lot of crime and theft, and the co-defendant's assault was foreseeable, and the moving defendant did not take reasonable precaution measures to minimize the risk and make the supermarket safe for the public; and (3) the moving defendant negligently handled the entire incident which could have been avoided, and therefore, the moving defendant is liable for the co-defendant's assault.
Employer-Employee and Independent Contractor Relationship
The plaintiff argues that the plaintiff's personal injuries were caused as a result of the actions and/or activities of the co-defendant during the course of his employment with the moving defendant. The plaintiff asserts that the moving defendant is vicariously and/or jointly liable for the actions of the co-defendant.
The moving defendant argues that the co-defendant had never been an employee of Met Foods. The moving defendant contends that the co-defendant had been an independent contractor of the moving defendant, and there are no significant factual disputes with respect to employer-employee and independent contractor relationship.
As a general rule, a principal is not liable for the acts of an independent contractor because principals ordinarily do not control the manner in which independent contractors, as opposed to employees of the principal, perform their work. Chainani v. Bd. of Educ. of the City of NY , 87 NY2d 370, 663 N.E.2d 283, 639 N.Y.S.2d 971 (1995) ; Goodwin v. Comcast Corp. , 42 AD3d 322, 840 N.Y.S.2d 781 (1st Dept. 2007) ; Saini v. Tonju Assoc. , 299 AD2d 244, 750 N.Y.S.2d 55 (1st Dept. 2002) ; Melbourne v. New York Life Ins. Co. , 271 AD2d 296, 707 N.Y.S.2d 64 (1st Dept. 2000). Control of the method and means by which work is to be performed, therefore, is a critical factor in determining whether a party is an independent contractor or an employee for the purposes of tort liability. Goodwin , 42 AD3d at 322-23 ; Melbourne , 271 AD2d at 297. "Moreover, the mere retention of general supervisory powers over an independent contractor cannot form a basis for the imposition of liability against the principal." Goodwin , 42 AD3d at 323 ; Melbourne , 271 AD2d at 297. Such determination generally involves a question of fact. However, where the evidence on the issue of control presents no conflict, the matter may properly be determined by the court as a matter of law. Goodwin , 42 AD3d at 322 ; Melbourne , 271 AD2d at 297 ; Lazo v. Mak's Trading Co., Inc. , 199 AD2d 165, 605 N.Y.S.2d 272 (1st Dept. 1993), aff'd 84 NY2d 896 (1994).
At her deposition, the plaintiff testified that the co-defendant acted as if he was a security officer acting on behalf of the moving defendant. In addition, the plaintiff testified that prior to the day that the incident occurred, the plaintiff observed the co-defendant put customer purchases into shopping bags on at least two occasions. The plaintiff further testified that she observed the co-defendant placing items on shelves a few times. Lastly, the plaintiff testified that the co-defendant's actions led the plaintiff to believe that the co-defendant was an employee of the moving defendant.
Mr. Asael Diaz testified that the co-defendant was never employed by of Met Foods. He also testified that Met Foods employees wear uniforms. Met Foods employees have punch cards and are required to clock in and out every day when they enter, leave, go on their lunch break, etc.
By her affidavit, Ms. Brine Diaz, one of Met Foods employees, also attests that the co-defendant is not currently and never was an employee, agent or under the control of Met Foods.
Jhonny Cordero testified that he was never employed by Met Foods or wore its uniform. He was not provided an employee punch card that the moving defendant requires its employees to have. The co-defendant also testified that his sole relationship with the moving defendant was that he sells produce and/or fruit to the moving defendant. He also sells produce and/or fruit to another store besides the moving defendant. The co-defendant further testified that he leaves the merchandise at the supermarket and never places the merchandise on the shelves himself.
As the depositions of Asael Diaz and the co-defendant show, the moving defendant did not provide its uniform to the co-defendant. The moving defendant did not provide or require the co-defendant to have a punch card. Furthermore, the co-defendant testified that he did not have a specific time to delivery his merchandise to Met Foods and has different route each day when he delivers merchandise to Met Foods. As the depositions show, the moving defendant did not "exercise actual or constructive control over the performance and manner in which the work of the co-defendant was performed." Lazo , 84 NY2d at 897-899.
This Court finds that the plaintiff failed to demonstrate an issue of fact as to whether the co-defendant is an employee of the moving defendant rendering the moving defendant liable to the plaintiff for the co-defendant's assault.
"High Crime/Bad Area/History of Criminal Conduct" and Foreseeability
The plaintiff's counsel argues that the area where the supermarket is located is described by everyone involved as a bad area prone to frequent crime and theft. The plaintiff's counsel contends that the store employees have to deal with theft on a daily basis and regularly call the police to report theft. The plaintiff's counsel contends that the moving defendant knew or should have known that the supermarket is in a high crime area, that people steal all the time, and that there are times when the accused thieves will get violent. Therefore, the plaintiff contends that the co-defendant's assault was foreseeable for Met Foods, and the moving defendant failed to exercise due care in the performance of its assigned responsibilities.
The plaintiff cited Miller and Nallan case as the cases as having facts similar to the instant case. See Miller v. New York , 62 NY2d 506, 467 N.E.2d 493, 478 N.Y.S.2d 829 (1984) ; Nallan v. Helmsley-Spear, Inc. , 50 NY2d 507, 407 N.E.2d 451, 429 N.Y.S.2d 606 (1980).
In Miller , Miller, the claimant, was confronted in the laundry room of her dormitory by a man wielding a large butcher knife. Miller , 62 NY2d at 509. The claimant fled the laundry room, however, she was raped twice at knifepoint and threatened with mutilation or death if she made any noise. Miller , 62 NY2d at 509. The assailant was never identified and was an intruder in the dormitory with no right or privilege to be present there. Miller , 62 NY2d at 509. In Miller , there had been reports to campus security of men being present in the women's bathroom, and the claimant herself had complained twice to the defendant about nonresidents loitering in the dormitory lounges and hallways when they were not accompanied by resident students. Miller , 62 NY2d at 509. Furthermore, the State knew numerous crimes in the dormitories such as armed robbery, burglaries, criminal trespass, and a rape by a nonstudent. However, the doors at all of the approximately 10 entrances to the dormitory building were concededly kept unlocked at all hours, although the doors each contained a locking mechanism. Miller , 62 NY2d at 509. The Court found that there was a reasonably foreseeable likelihood of criminal intrusion into the building, that the State negligently failed to keep the outer doors locked, and that the failure was a proximate cause of the injury. Miller , 62 NY2d at 514.
Miller is factually dissimilar to the instant case. In Miller , the defendant knew that numerous crimes, including a rape, had been committed by a nonstudent, and, actually, the claimant was sexually assaulted by a nonstudent. In this case, the moving defendant might know or should have known theft would occur in its premises. However, in the case herein, the plaintiff's belongings were not stolen nor was the plaintiff robbed in the supermarket. The plaintiff got injured because of the altercation that she voluntarily entered into with the co-defendant.
In Nallan , the plaintiff was shot in the back by an unknown assailant as the plaintiff leaned over to sign a guest register that had been placed on a desk located in the lobby of a building owned and operated by the defendants. Nallan , 50 NY2d at 512-13. Ordinarily, an attendant employed by the management was stationed at the desk to sign in individuals who arrived at the building after business hours, however, the lobby attendant was away from his post attending to his janitorial responsibilities elsewhere in the building at the time the plaintiff was shot. Nallan , 50 NY2d at 513. In this case, the assailant, who has never been caught, was a would-be assassin whose purpose was to retaliate against the plaintiff for his efforts to uncover certain corrupt practices in the labor union in which he was an active member, and the plaintiff had previously received threats on his life that plaintiff had reported to the police. Nallan , 50 NY2d at 513. Thus, the plaintiff contended that, by employing an attendant to keep an eye on the building, the defendant assumed an obligation to provide, at least, minimal protection from criminal intruders for visitors who entered the building after business hours. Nallan , 50 NY2d at 513. Furthermore, the plaintiff argued that the defendant lacked due care in the performance of this assumed obligation, and, therefore, the defendant was liable for plaintiff's injuries. Nallan , 50 NY2d at 513.
Nallan is also factually dissimilar to the instant case. In Nallan , plaintiff had previously received threats on his life that plaintiff had reported to the police. However, in the instant case, the plaintiff testified that she had never met the co-defendant or had an altercation with the co-defendant prior to June 7, 2015. She had never reported any incident with the co-defendant to the police prior to June 7, 2015. Also, in Nallan , defendant failed to provide, at least, minimal protection from criminal intruders for visitors who entered the building after business hours. The co-defendant was not a criminal intruder, however, based upon the deposition of Asael Diaz, the plaintiff was a criminal intruder and triggered the violent crime herself.
Finally, in both Millar and Nallan , the incident occurred on the defendant's premises or properties. In this case, it is undisputed that the incident occurred on a publicly owned sidewalk and not on the moving defendant's premises. See Wong , 139 AD3d at 440 (the Court held that the duty to take minimal security precautions does not extend to exterior public areas, including walkways and vestibules).
In addition to the aforementioned discussion, in this case, the plaintiff failed to provide any admissible evidence that shows the history of criminal conduct in and/or near the supermarket. It is unclear to this Court exactly who is the "everyone" the plaintiff alleges to is or exactly who it is that describes the area where the supermarket is located as a bad area. Mere conclusory statements of the plaintiff's counsel that the supermarket is located in the "bad area," or that there is a lot of crime and theft in and/or near the supermarket are insufficient to defeat the defendant's motion for summary judgement. Coronel v. Chase Manhattan Bank , 19 AD3d 310, 798 N.Y.S.2d 41 (1st Dept. 2005) aff'd. 8 NY3d 838 (2007) ; Williams v. Citibank , 247 AD2d 49, 677 N.Y.S.2d 318 (1st Dept. 1998).
It is well settled that "ambient neighborhood crime alone is insufficient to establish foreseeability. Rather, to establish foreseeability, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location." Wong v. Riverbay Corp. , 139 AD3d 440, 32 N.Y.S.3d 69 (1st Dept. 2016) ; Ortiz v. Wils Realty Corp. , 66 AD3d 429, 887 N.Y.S.2d 10 (1st Dept. 2009) ; Maria T. v. New York Holding Co. Assoc. , 52 AD3d 356, 862 N.Y.S.2d 16 (1st Dept. 2008) ; Buckeridge v. Broadie , 5 AD3d 298, 774 N.Y.S.2d 132 (1st Dept. 2004) ; Novikova v. Greenbriar Owners Corp. , 258 AD2d 149, 694 N.Y.S.2d 445 (2nd Dept. 1999). Here, the plaintiff also failed to provide any admissible evidence to show that the assault at issue was the same as or similar to criminal activity at the supermarket and that the incident was reasonably predictable for the moving defendant.
This Court finds that the plaintiff failed to demonstrate an issue of fact as to whether there was a history of criminal activity in and/or near the supermarket, and that the moving defendant failed to exercise due care in the performance of its assigned responsibilities. Also, this Court finds that the plaintiff failed to demonstrate an issue of fact as to whether the co-defendant's assault and/or anyone else's potential assault was foreseeable for the moving defendant.
Negligently Handled
The plaintiff argues that the moving defendant negligently handled the subject incident which could have been avoided. The plaintiff claims that the moving defendant should have called the police and/or closed the doors of the supermarket when a shoplifter exited, however, the moving defendant dealt with the plaintiff by itself. Furthermore, the plaintiff argues that the moving defendant failed to provide any trained security personnel on the premises because moving defendant put people, who had no training or experience in security, in charge of dangerous situations in a high crime area.
This Court has held that "one who voluntarily participates in a physical fight cannot recover from a party generally charged with ensuring a safe environment." Hernandez v. Bronx-Lebanon Hosp. Ctr. , 176 AD3d 631 (1st Dept. 2019) ; Carreras v. Morrisania Towers Hous. Co. Ltd. P'ship , 107 AD3d 618, 968 N.Y.S.2d 66 (1st Dept. 2013) ; see also Vega v. Ramirez , 57 AD3d 299, 871 N.Y.S.2d 6 (1st Dept. 2008).
At her deposition, the plaintiff testified that she was outside of the supermarket and was planning to go to another store immediately before the incident occurred. Plaintiff freely leave the supermarket and could have walked away from the supermarket uninjured. However, plaintiff herein decided to pick up a stick and charge at the co-defendant with it. Then, in the course of the altercation, the plaintiff threw the stick at the co-defendant. The plaintiff not only triggered the altercation but also voluntarily engaged in the physical fight with the co-defendant. Without any admissible evidence that contradicts these facts, this Court could not find a question of fact as to whether the moving defendant negligently handled the altercation.
The defendant established a prima facia showing of entitlement to summary judgement, and the plaintiff failed to raise any triable issues of fact.
Accordingly, it is hereby
ORDERED, that the moving defendant's motion is granted; and it is further
ORDERED, that the case against the moving defendant is dismissed; and it is further
ORDERED, that the moving defendant is directed to serve a copy of this order with notice of entry on the Plaintiffs and the co-defendant within thirty (30) days from the date of entry.
This constitutes the decision and order of the court.