Opinion
12434 Index No. 20869/12 Case No. 2020-02995
11-19-2020
Andre BALLARD et al., Plaintiffs-Appellants, v. SIN CITY ENTERTAINMENT CORP., et al., Defendants-Respondents, John Does 1-5 et al., Defendants.
Paul H. Maloney, PC, New York (Michael K. O'Donnell of counsel), for appellants. Harfenist Kraut & Perlstein, LLP, Lake Success (Steven J. Harfenist of counsel), for Sin City Entertainment Corp. and SCE Group Inc., respondents. O'Toole Scrivo, LLC, New York (Sean C. Callahan of counsel), for Emissary Security Group Inc., respondent.
Paul H. Maloney, PC, New York (Michael K. O'Donnell of counsel), for appellants.
Harfenist Kraut & Perlstein, LLP, Lake Success (Steven J. Harfenist of counsel), for Sin City Entertainment Corp. and SCE Group Inc., respondents.
O'Toole Scrivo, LLC, New York (Sean C. Callahan of counsel), for Emissary Security Group Inc., respondent.
Gische, J.P., Mazzarelli, Moulton, Mendez, JJ.
Order, Supreme Court, Bronx County (Donna Mills, J.), entered October 15, 2019, which granted defendants Sin City Entertainment Corp. and SCE Group, Inc.'s (together, Sin City) motion for summary judgment dismissing the complaint and, upon a search of the record, granted summary judgment dismissing the complaint as to defendant Emissary Security Group Inc. (Emissary), unanimously reversed, on the law, without costs, to deny summary judgment to all defendants.
Issues of fact remain as to defendants' control of the street in front of the club, where plaintiffs' assault occurred (see generally D'Amico v. Christie, 71 N.Y.2d 76, 85, 524 N.Y.S.2d 1, 518 N.E.2d 896 [1987] ); whether defendants could or should have foreseen plaintiffs' assault, given not only the events that transpired in the club prior to the assault (see Ash v. Fern, 295 A.D.2d 869, 744 N.Y.S.2d 559 [3d Dept. 2002] ; Haber v. Precision Sec. Agency, 24 Misc.3d 1229[A], 2009 N.Y. Slip Op. 51667[U], 2009 WL 2357734 [Sup. Ct., Kings County 2009] ), but also the acts of violent or criminal conduct at the club predating plaintiffs' assault (see e.g. Britt v. SCE Group Inc, Sup Ct, Bronx County, May 28, 2014, Thompson, J., index No. 309856/11; see also Matter of SCE Group Inc. v. New York State Liq. Auth., 159 A.D.3d 519, 72 N.Y.S.3d 68 [1st Dept. 2018] ; see generally Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980] ; Maria T. v. New York Holding Co. Assoc., 52 A.D.3d 356, 357, 862 N.Y.S.2d 16 [1st Dept. 2008], lv denied 11 N.Y.3d 708, 868 N.Y.S.2d 600, 897 N.E.2d 1084 [2008] ) and, whether Sin City was the special employer, and is therefore vicariously liable for the acts and omissions, of Emissary's bouncers, who provided security for Sin City on the night in question and allegedly assaulted the plaintiffs (see Britt ; see also Fauntleroy v. EMM Group Holdings LLC, 133 A.D.3d 452, 453, 20 N.Y.S.3d 22 [1st Dept. 2015] ; Babikian v. Nikki Midtown, LLC, 60 A.D.3d 470, 471, 875 N.Y.S.2d 20 [1st Dept. 2009] ; see generally Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557–558, 578 N.Y.S.2d 106, 585 N.E.2d 355 [1991] ). Accordingly, Supreme Court should not have dismissed plaintiffs' negligence claims against any defendant.
Defendants failed to demonstrate, prima facie, that plaintiffs' assailants were not served alcohol while visibly intoxicated or that the sale of alcohol to the assailants had no reasonable or practical connection to plaintiffs' assault ( General Obligations Law § 11–101 ; Trigoso v. Correa, 150 A.D.3d 1041, 1043, 55 N.Y.S.3d 130 [2d Dept. 2017] ). Instead, defendants relied on plaintiffs' inability to prove that the assailants were served alcohol or were intoxicated. However, a defendant when moving for summary judgment cannot merely point to gaps in the plaintiffs' evidence, but must affirmatively demonstrate entitlement to summary judgment ( Koulermos v. A.O. Smith Water Prods., 137 A.D.3d 575, 27 N.Y.S.3d 157 [1st Dept. 2016] )). Further, Sin City's argument that plaintiffs' complaint failed to state a cause of action under the Dram Shop Act is raised for the first time on appeal and we will not consider it.
In light of our decision reversing summary judgment as to Sin City, we need not reach the issue of whether summary judgment should also have been granted to nonmovant Emissary.
We decline to address plaintiffs' request for spoliation sanctions, since they did not cross-move or otherwise apply for that relief (cf. J.B. ex rel. Aileen M. v. R.M. ex rel. Janet W., 51 Misc.3d 1213[A], 2015 N.Y. Slip Op. 51991[U], 2015 WL 10714627, *3 [Sup. Ct., Greene County 2015] ). The matter should be decided by Supreme Court in the first instance, either on plaintiffs' motion (cf. Creative Cabinet Corp. of Am. v. Future Visions Computer Store, 140 A.D.2d 483, 484–485, 528 N.Y.S.2d 596 [2d Dept. 1988] [plaintiff who did not cross-appeal could move Supreme Court to amend complaint to properly name defendant, "if it be so advised"]; Brown v. Lockwood, 76 A.D.2d 721, 742, 432 N.Y.S.2d 186 [2d Dept. 1980] [plaintiff could move for partial summary judgment on his second cause of action on remittitur "(i)f he be so advised"] ) or at trial, dependent upon the proof adduced thereat (see Rodriguez v. 551 Realty LLC, 35 A.D.3d 221, 221, 826 N.Y.S.2d 234 [1st Dept. 2006] ["plaintiff may, if so advised, seek an adverse inference charge at trial"]; cf. Galue v. Independence 270 Madison LLC, 184 A.D.3d 479, 127 N.Y.S.3d 1 [1st Dept. 2020] [charging jury on res ipsa loquitur was dependent upon proof adduced at trial] ).
We have considered plaintiffs' remaining contentions and find them unavailing.