Opinion
Index No. 159127/2019 Motion Seq. No. 004 005
10-18-2024
BENITO ROSA JR., Plaintiff, v. 200 MB CORP., JIMMY'S 38 NYC, CASTILLO SECURITY SERVICES, LTD., and JOHN DOE-Security Guard, as yet unidentified, Defendants.
Unpublished Opinion
MOTION DATE 09/06/2023, 08/23/2023
DECISION+ ORDER ON MOTION
HON. PAULA. GOETZ, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 004) 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 100, 106, 107, 108, 109 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 101, 102, 103, 104, 105 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER)
In this personal injury action, plaintiff claims that on July 7, 2019, defendant John Doe, a security guard employed by defendant Castillo Security Services, LTD (Castillo Security), injured plaintiff while removing him from Jimmy's 38 NYC, a nightclub (the nightclub) located at 156 W 38th Street in Manhattan owned by defendants 200 MB Corp (200 MB) and Jimmy's 38 NYC. Plaintiffs causes of action in his amended complaint (which added Castillo Security, as the company providing security services on the night of the incident) are for: (1) assault and battery, (2) negligence, (3) negligent hiring and retention, (4) negligent supervision and training, and (5) punitive damages.
Castillo Security moves for summary judgment to dismiss plaintiff s claims against it (MS #4). 200 MB and Jimmy's 38 NYC (collectively, 200 MB) move for summary judgment to dismiss plaintiffs claims and Castillo Security's crossclaims against them (MS #5). Plaintiff filed the note of issue on July 3, 2023 (NYSCEF Doc. No. 76, Exhibit F). Defendant John Doe has not been served or appeared as his identity is unknown.
BACKGROUND
Plaintiff s EBT Testimony
Plaintiff alleges that while celebrating his birthday with his cousin and nephew at the nightclub, he unexpectedly was confronted by a security guard who told him to leave the nightclub (NYSCEF Doc No 78, 9:17-10:15, 15:8-22). When plaintiff asked the security guard why he had to leave, the security guard allegedly "said something slick" which caused plaintiff to turn around and face the security guard (id. at 17:2-8). At that moment, the security guard allegedly pushed plaintiff three times near the stair-well leading to the club exit. After the first push, plaintiff testified that he fell backwards and braced his fall with his left hand by grabbing the metal railing causing his left hand to bleed (id. at 21:13-18, 24:21-24). Plaintiff testified that after the second push from a landing, he fell backwards to the ground floor, striking the back of his head against a metal railing of the doorway (id. at 25:17-24). Plaintiff testified that the security guard's third push ejected him from the nightclub onto the sidewalk (id. at 26:2-9). Plaintiff did not recognize the stairwell shown to him in a photograph during his deposition (id. at 29-32). He testified that he had two alcoholic drinks and that he was not drunk at the club (id. at 12:18-20, 13:16-18). Plaintiff suffered lacerations to his left hand for which he sought medical care the following day (id. at 44: 8-14).
Jimmy's 38 NYC
Paul Brown works for Jimmy's 38 NYC as the Director of Operations (NYSCEF Doc No 79, 8:8-10). Brown testified that in July 2019 Jimmy's 38 NYC had a contract with a security company (he did not recall the name) to provide uniformed security guards (id. at 18:15-25, 43:12-14). Brown testified that he held nightly meetings where he gave out assignments to the security guards (id. at 21). Brown instructed the security guards how to interact with patrons and deescalate situations in nonaggressive ways (id. at 47:18-25, 48:2-4). Brown testified that he made the decision as to whether a patron had to be escorted out of the club (id. at 59:4-6). He further testified that he never trained security guards how to remove someone from the club, but he believed the security company trained them on nonviolent methods to remove patrons (id. at 60:18-25). Brown also testified that Jimmy's 38 NYC wrote a check to the security company and the security company would then pay the guards (id. at 20:9-13). He testified that the security company conducted background checks on security guards but that it did not provide this information to Jimmy's 38 NYC (id. at 47:9-15).
Brown also testified that he was at the nightclub on the night of the incident and that plaintiff was intoxicated, "belligerent and trying to be violent" (id. at 65:16-25). Brown decided that multiple security guards had to escort plaintiff out of the club, which they did by grabbing his amis and leading him down the stairwell (id. at 69:5-14). Brown insisted that plaintiff was not pushed down the stairwell (id. at 72:17-19). Brown testified that he never saw a security guard push plaintiff nor did he see blood on plaintiff (id. at 74:10-20). He did not recall the names of the security guards working on the night of the incident (id. at 75:11-14). He testified that there was a supervising manager of security guards named Anthony whose last name he did not recall (id. at 19:5-12).
Castillo Security
Raymond Castillo is the owner and president of Castillo Security. Pursuant to a contract with Jimmy's 38 NYC, his company provided unarmed security guards for the nightclub at the time of the incident (NYSCEF Doc No 80, 13:22-25, 14:18-24). According to the October 19, 2018 contract, Castillo Security provided two security guards from 6:00 P.M. until 3:00 A.M. on Sunday through Thursday and six guards from 2:00 P.M. until 4:00 A.M. on Friday and Saturday (NYSCEF Doc No 77). Castillo did not recall the security guards that were working at the nightclub on July 7, 2019 (NYSCEF Doc No 80, 18:12-16). Castillo testified that the security guards took orders from Brown at the nightclub (id. at 19:11-18).
As to the hiring process, Castillo testified that his company conducts background checks on potential security guards and ensures that they have their active licenses (id. at 23:18-25). Castillo testified that security guards complete an eight-hour training program, "on-the-job" training, as well as annual training with the Department of State (id. at 25:2-5, 26:2-3). He also testified that Brown trained and supervised the security guards at the nightclub (id. at 26:9-18, 31:7-13). He believed that either Jimmy's 38 NYC or 200 MB paid Castillo Security by check for security services at the club (id. at 33:21-25, 34:2-4). Castillo relied on Brown to notify him of any incidents involving security guards at the nightclub and testified that Brown never notified him of plaintiffs incident (id. at 35:4-12). According to Castillo, the security guards at the nightclub reported to Brown and Brown handled the protocol for removing patrons from the nightclub (id. at 41:10-14, 42:5-8).
The contract between Castillo Security and 200 MB Corp contains a clause requiring Castillo Security to procure insurance for 200 MB (NYSCEF Doc No 77). Paragraph 7 requires that Castillo Security "at all times with respect to the guards keep in full force and effect. . . public liability insurance . . . [and] name [200 MB Corp] as additional insured" (id.).
DISCUSSION
Motion Sequence 005
200 MB moves for summary judgment dismissing plaintiff's claims and Castillo Security's crossclaims against it. In opposition, plaintiff notes that 200 MB's motion was filed on September 6, 2023, more than 60 days after the note of issue was filed on July 3, 2023 (NYSCEF Doc No 66) and is therefore untimely pursuant to this Part's rules and prior status conference orders (NYSCEF Doc Nos 11, 32, 48-50, 53, 65). 200 MB did not explain the reason for the delay in its moving papers and did not submit reply papers.
"The merits of an untimely motion for summary judgment may be considered by the court only if the movant demonstrates good cause for the delay in making the motion - a satisfactory explanation for the untimeliness" (Crawford v Liz Claiborne, Inc., 45 A.D.3d 284, 285 [1st Dept 2007] [internal quotation marks omitted]). Moreover, "[t]hat the motion was only a few days late does not eliminate the requirement that good cause be demonstrated" (id. at 286-87 ["the de minimis delay [] was not satisfactorily explained"]; Miceli v State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725, 726 [2014] "court-ordered time frames [] are not options, they are requirements, to be taken seriously be the parties"] [citation omitted]).
200 MB did not offer any explanation for its delay in filing its summary judgment motion, much less good cause for that delay (Kuyenova v R&M Supermarket, 215 A.D.3d 940, 941 [2nd Dept 2023] ["Absent a satisfactory explanation ... an untimely summary judgment motion must be denied without consideration of the merits"] [internal quotation omitted]). Accordingly, 200 MB's motion for summary judgment will be denied as untimely.
Motion Sequence 004
Plaintiff s causes of action against Castillo Security are for (1) assault and batteiy, (2) negligence, (3) negligent hiring and retention, (4) negligent supervision and training, and (5) punitive damages (NYSCEF Doc No 87). In support of its motion, Castillo Security argues that it did not exercise direction, supervision, and control over the security guard's actions at Jimmy's 38 NYC nightclub on July 7, 2019. Castillo Security argues that Brown exercised control over the security guards under the principles of vicarious liability (citing Riviello v Waldron, 47 N.Y.2d 297, 302 [1979]; Thompson v Grumman Aerospace Corp., 78 N.Y.2d 553, 557 [1991]). Castillo Security avers that the nightclub had "substantial control" over the security guards' daily functions, as evidenced by Castillo's testimony about Brown's instructions to the guards. Castillo Security contends that Brown's instructions, daily meetings, decisions on when to eject unruly patrons from the nightclub show that the nightclub controlled the security guards' job functions. Castillo Security argues that it is not vicariously liable for the security guard's alleged assault of plaintiff.
In opposition, plaintiff contends that Castillo Security may be liable since its employee, a security guard, was '"acting within the scope of the employment'" (quoting Fernandez v Rustic Inn, Inc., 60 A.D.3d 893, 896-97 [2nd Dept 2009]). Plaintiff points out that under the broad meaning of "scope of employment," as long as the employee was "doing the master's work, no matter how irregularly or with what disregard of instructions," the employer may be liable (citing Riviello, 47 N.Y.2d at 302). Plaintiff argues it is in-elevant that the alleged tort was intentional because the employer need not have foreseen the precise act or exact manner of injury as long as the general type of conduct by the employee could have been reasonably expected (see Patterson v Kahn, 240 A.D.2d 644, 644-45 [2nd Dept 1997]). Thus, plaintiff argues that the intentional tort of assault here can give rise to Castillo Security's liability for injuries even if it was willful, because it was undertaken in furtherance of Castillo Security's business and was within the scope of the security guard's employment. Plaintiff argues that the security guard was instructed to remove plaintiff from the premises, and in carrying out his job duties, used excessive force to eject him. Plaintiff also claims that whether the security guard's use of excessive force, an intentional assault, could have been reasonably expected and was within the scope of his employment is a question of fact for the jury.
Plaintiff also argues that Castillo Security did not meet its initial burden of showing that it exercised reasonable care in hiring and retaining the security guard, and therefore it has not demonstrated that the security guard's alleged conduct was unforeseeable (citing Judith M. v Sisters of Charity Hosp., 93 N.Y.2d 932, 933-34 [2nd Dept 1999]). Aside from the fact that Castillo Security has not identified the security guard, plaintiff argues that Castillo Security fails to eliminate triable questions of fact as to whether it took reasonable steps to investigate the security guard's background prior to hiring him (citing, e.g., Andersen v Suska Plumbing, 246 A.D.2d 475, 475 [1st Dept 1998]). 97 N.Y.2d 247, 251 [2002]). As such, Castillo Security argues that the security guard's alleged tortious conduct was not in furtherance of its interests or within its direct or implied authorization.
In addition, Castillo Security notes that plaintiff does not set forth evidence that it knew or should have known of the security guard's alleged propensity for conduct that caused plaintiffs injuries and thus does not allege a negligent hiring and retention claim (citing Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 161 [2nd Dept 1997]). It argues that it did not have actual or constructive knowledge (citing T.W. v City of NY, 286 A.D.2d 243, 245 [1stDept 2001]). Castillo Security maintains that the unknown identity of the security guard does not create an issue of fact, but even if the court finds that it does, plaintiff has not shown that Castillo Security knew of any security guard's propensity for injurious conduct.
i. CPLR 3212 Summary Judgment Standard of Review
On a motion for summary judgment, a movant must "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Trustees of Columbia Univ, in the City of N.Y. v D 'Agostino Supermarkets, Inc., 36 N.Y.3d 69, 73-74 [2020] [internal quotation marks and citations omitted]). It is a heavy burden, and the facts are viewed in the light most favorable to a non-movant (William J. JenackEstate Appraisers &Auctioneers. Inc. v Rabizadeh, 22 N.Y.3d 470, 475 [2013]). Thus, facts are viewed in the light most favorable to a nonmoving party, which includes drawing reasonable interferences in favor of a nonmoving party (Vega v Metropolitan Transp. Auth., 212 A.D.3d 587, 588 [1st Dept 2023] [internal citation omitted]). If a defendant establishes his or her prima facie burden, then the burden shifts to a plaintiff who must present sufficient evidence to establish the existence of a material issue of fact (Mazurek v Metropolitan Museum of Art, 27 A.D.3d 227, 228 [1st Dept 2006]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations are insufficient to raise an issue of fact" (Alpine Custom Floors, Inc. v Yurcisin, 209 A.D.3d 460, 460-461 [1st Dept 2022] [internal citation omitted]).
ii. Assault and Battery/Negligence
"Under the doctrine of respondeat superior, an employer may be held vicariously liable for intentional torts committed by employees acting within the scope of their employment, as long as those acts were 'generally foreseeable and a natural incident of the employment'" (Summors v Port Auth. of N.Y. &N.J., 203 A.D.3d 558, 561 [1st Dept 2022], quoting Rivera, 34 N.Y.3d at 389; Jones v Hiro Cocktail Lounge, 139 A.D.3d 608, 609 [1st Dept 2016]). "When businesses hire security guards to maintain order, the physical force used by those bouncers may be within the scope of their employment" (Fauntleroy v EMM Group Holdings LLC, 133 A.D.3d 452, 453 [1st Dept 2015]). "[B]ecause the determination of whether a particular act was within the scope of the servant's employment is so heavily dependent on factual considerations, the question is ordinarily one for the jury" (Riviello, 47 N.Y.2d at 303).
Unlike the security guard who, during the after hours of a party lifted plaintiff onto a bar in order to see if she could pop a balloon in McCann v Varrick Group, LLC, 2010 WL 1637080, 2010 NY Slip Op 30863[U] [SC NY Co 2010], aff'd 84 A.D.3d 591, the alleged actions taken by the security guard in this case could be deemed part of his job to provide security and serve his employer's interests if it is proved that the security guard is an employee of Castillo Security (see White v Hampton Mgt. Co., LLC, 35 A.D.3d 243, 244 [1st Dept 2006]; Salem v MacDougal Rest. Inc., 148 A.D.3d 501, 502 [1st Dept 2017] ["On this record, it cannot be concluded, as a matter of law, that the bouncer was acting outside the scope of his employment at the time of the assault"]). Accordingly, the part of Castillo Security's motion for summary judgment seeking dismissal of plaintiff's causes of action for assault and battery and negligence will be denied.
iii. Negligent Hiring, Training, Supervision and Retention
An employer has a duty to use reasonable care and refrain from knowingly employing an individual with known dangerous propensities in a position that would present a foreseeable risk of harm to others (Moore Charitable Found, v PJT Partners. Inc., 40 N.Y.3d 150, 162 [2023]). A showing that the employer had notice of the employee's relevant tortious propensities is required for recovery on a negligent hiring and retention claim (Gomez v City of New York, 304 A.D.2d 374,374-375 [1st Dept 2003]).
Here, Castillo Security established that it took reasonable care in hiring security guards who would not present a physical risk to customers (NYSCEF Doc No 80, 23:18-25:15 [Castillo testifying that all new hires must submit to a criminal background check, show proof of their active security guard license, and complete training courses]; Fambro, 205 A.D.3d at 609; Doe v Goldweber, 112 A.D.3d 446, 447 [1st Dept 2013]). Castillo also could not recall receiving any complaints about its security guards at the nightclub prior to July 7, 2019 (id. at 44:4-8). In response, plaintiff failed to raise a triable issue of fact suggesting that Castillo Security knew or should have known that its security guards had violent or dangerous propensities upon hiring, or that they were negligently trained or supervised. Nor could plaintiff trace any negligence to the specific security guard at issue, as he has not been identified (see Jones v Hiro Cocktail Lounge, 139 A.D.3d 608, 609 [1st Dept 2016] ["Since the assailant was not identified, plaintiff could not demonstrate that [his employer] knew of the [his] propensity to commit such attacks"]). Accordingly, the part of Castillo Security's motion for summary judgment seeking dismissal of plaintiffs causes of action for negligent hiring, training, supervision and retention will be granted.
CONCLUSION Based on the foregoing, it is
ORDERED that defendant Castillo Security Services, Ltd.'s motion for summary judgment (MS #4) is granted to the extent that plaintiffs third cause of action for negligent hiring and retention and fourth cause of action for negligent supervision and training are dismissed, and is otherwise denied; and it is further
ORDERED that defendant 200 MB Corp, and Jimmy's 38 NYC's motion for summary judgment (MS #5) is denied.