Opinion
968/2014
06-16-2016
William Rodriguez, Plaintiff, v. JHL Restaurants of Seventh Avenue, LLC, Cedar Mountain Management, Inc., Felix Graniela and John Doe Security Company, Defendants.
Attorney for the plaintiff Frank L. Pellegrini, Esq. Pellegrini and Associates, LLC 336 West 37th Street, Suite 905 New York NY 10018 212-219-8312 Attorney for the defendants Kristyn M. Boyd, Esq. Stonberg, Moran, LLP 505 8th Avenue, Suite 2302 New York, NY 10018 212-231-2220
Attorney for the plaintiff Frank L. Pellegrini, Esq. Pellegrini and Associates, LLC 336 West 37th Street, Suite 905 New York NY 10018 212-219-8312 Attorney for the defendants Kristyn M. Boyd, Esq. Stonberg, Moran, LLP 505 8th Avenue, Suite 2302 New York, NY 10018 212-231-2220 Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint notice of motion of defendants JHL Restaurants of Seventh Avenue, LLC (hereinafter JHL); and Cedar Mountain Management (hereinafter Cedar) (hereinafter jointly the JHL defendants or movants), filed on January 5, 2016, under motion sequence number four, for an order granting them summary judgment on the issue of liability and dismissing the complaint pursuant to CPLR 3212. Plaintiff William Rodriguez (hereinafter Rodriguez or plaintiff) opposed the motion. Notice of motion Affirmation in support Exhibits A-H Affirmation in opposition Affirmation in reply
BACKGROUND
On January 22, 2014, Rodriguez commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. Rodriguez served a supplemental summons and amended verified complaint upon the defendants dated March 31, 2014. By answer dated April 8, 2014, the movants joined issue. On November 23, 2015, a note of issue was filed. By decision and order dated August 13, 2014, Rodriguez's motion for a default judgment against defendant Felix Graniela pursuant to CPLR 3215 was granted.
The following facts are alleged in the complaint, and in Rodriguez's bill of particulars and deposition testimony. On June 17, 2013, at approximately 12:30 p.m. Rodriguez was at a McDonald's restaurant located at 556 Seventh Avenue, New York, New York (hereinafter the premises). At that date and time, the premises were owned and operated by JHL Restaurants of Seventh Avenue, LLC and Cedar Mountain Management. On the day of the incident Rodriguez ordered coffee and went upstairs to use the restroom. While he was in the restroom Felix Graniela (hereinafter Graniela) knocked on the bathroom door and yelled at him to hurry up. Rodriguez exited the bathroom and spoke with Graniela. Thereafter, Graniela struck and injured Rodriguez. Rodriguez had never met Graniela before the incident. The police were summoned, arrived at the premise and arrested Graniela.
Rodriguez's complaint essentially alleges that JHL and Cedar Mountain Management, Inc. were negligent in the hiring and supervision of its security guards and breached its duty to maintain a safe premises. Admissibility of Video Disc Surveillance Footage
The instant motion was scheduled in Part 52 for oral argument on February 26, 2016. At that time the Court was made aware that the movants had annexed, as an exhibit, a compact video disc which allegedly contained surveillance footage of the incident. By order dated February 26, 2016, the Court adjourned the motion to March 22, 2016, so that the movants could display the contents of the video disc in open court. The plaintiff could then confirm that the copy of the video disc provided to him was identical to the one provided to the court. If identical, the plaintiff could then assert any objections to its admissibility. At the hearing on March 22, 2016, the movants played the contents of the video disc. Plaintiff's counsel confirmed that the content of the displayed video disc was identical to that contained in the video disc provided to the plaintiff. Plaintiff's counsel then objected to it admissibility on the basis that there was no foundation nor authentication evidence to support its admission.
A video recording may be authenticated by the testimony of a witness to the recorded events or of an operator or installer of the equipment that the video recording accurately represents the subject matter depicted (see Read v Ellenville Nat'l Bank, 20 AD3d 408 [2nd Dept 2005]). The affirmation of movants' counsel described exhibit A as a video disc containing surveillance footage of the incident in question. The affirmation, however, did not set forth the basis for counsel's knowledge. The movants' papers contain no other sworn allegations pertaining to the video disc and its content. Consequently, the movants have offered no evidence from anyone with personal knowledge authenticating the video disc. As a result, the Court issued an order dated March 22, 2016, which sustained plaintiff's objection to the admissibility of the video disc and disregarded it.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]).
A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d 320 at 324 [1986]).
A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated for Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).
"Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]; citing Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990]).
"New York landowners owe people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition. Although landlords and permittees have a common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third parties, they are not the insurers of a visitor's safety (Maheshwari v City of New York, 2 NY3d 288 [2004][internal citation omitted]). Foreseeability is a concept that determines the scope of a duty but only once a duty is determined to exist (Id.). The scope of the possessor's duty is "defined by past experience and the likelihood of conduct on the part of third persons . . . which is likely to endanger the safety of the visitor' " (Maheshwari v City of New York, 2 NY3d 288 [2004][internal citation omitted]).
Furthermore, proximate causation is established when the defendant's negligence was a substantial cause of the events which produced the injury (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). Negligent acts of a third party may intervene and sever the causal connection. However, an intervening act of a third party and a finding of negligence of a premise owner are not mutually exclusive. Rather, when the act of a third party intervenes then liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence" (Id.). An intervening act may break the causal nexus when it is "extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct" ( Maheshwari v City of New York, 2 NY3d 288 [2004][internal citation omitted]).
In the instant matter the movants have annexed the deposition transcript of Rodriguez and of Teodora Castro (hereinafter Castro), the manager of the McDonald's restaurant where the incident occurred. Castro testified that she was present at the premises on the date of the incident but did not see nor hear the exchange between Rodriguez and Graniela. She was alerted to the incident because Rodriguez walked up to her mumbled something and ran out. The police later arrived and told her to preserve the surveillance footage.
Castro further testified that there was never a similar incident at the premise. She also testified that security worked in the restaurant during certain time periods to deal with the influx of individuals that she described as homeless who would frequent the store during certain times.
The movants have established through the deposition testimony of Castro that it maintained a reasonably safe condition on the date of the incident. Even assuming, for the sake of argument, that JHL was negligent in some way, the actions of Graniela "were independent acts that were far removed from any possible negligence of the defendants' conduct" the criminal assault broke the causal nexus (Maheshwari v City of New York, 2 NY3d 288 [2004][internal citation omitted]). The movants have established that the attack was extraordinary and not foreseeable or preventable in the normal course of events (Id., see also Scharff v L.A. Fitness Intl, LLC, 139 AD3d 929 [2nd Dept 2016]).
Accordingly, the movants shifted the burden to the plaintiff to raise a triable issue of fact. Plaintiff submitted his affidavit and an affirmation of his counsel. Neither the plaintiff's affidavit nor his counsel's affirmation raised a triable issue of fact on the lack of forseeability of Graniela's violent conduct against the plaintiff.
CONCLUSION
JHL Restaurants of Seventh Avenue, LLC and Cedar Mountain Management motion for an order granting them summary judgment on the issue of liability pursuant to CPLR 3212 and dismissing the complaint is granted.
The foregoing constitutes the decision and order of this Court. Enter: June 16, 2016 Hon. Francois A. Rivera J.S.C.