Opinion
Index No. 25170/2019E
09-29-2021
ANSEL L. CRIDLAND, Plaintiff, v. BUNNA. LLC d/b/a BUNNA CAFE, Defendants.
Unpublished Opinion
MEMORANDUM DECISION/ORDER
RUBEN FRANCO, JUDGE
In this negligence action, defendant moves to dismiss the second and third causes of action for nuisance and strict liability (CPLR 3211 [a] [7]), and for summary judgment (CPLR 3212) dismissing the Complaint.
On February 24, 2018, plaintiff was dining at the Burma Cafe, a restaurant owned and operated by defendant Burma LLC, when a wine glass broke in his hands, causing injuries to his hands. Plaintiff alleges that defendant negligently provided him with a defective wine glass. Defendant argues that plaintiff neither identifies any defect in the glass, nor shows that defendant's maintenance procedures for the glass caused or contributed to this incident.
Defendant submits a statement of material facts in compliance with 22 NYCRR § 202.8-g, and plaintiff fails to provide a "statement of the material facts as to which it is contended that there exists a genuine issue to be tried." Thus, the facts as stated by defendant are deemed admitted.
On a motion pursuant to CPLR 3211 (a) (7), a Complaint must be liberally construed, the factual allegations set forth must be accepted as true, the plaintiff must be given the benefit of all favorable inferences therefrom, and the court must decide only whether the facts alleged fall under any recognized legal theory (see Maddicks v Big City Props., LLC, 34 N.Y.3d 116, 123 [2019]; Lee v Dow Jones & Co., Inc., 121 A.D.3d 548 [1st Dept 2014]). Affidavits may be considered freely "to preserve inartfully pleaded, but potentially meritorious, claims" in a Complaint (Rovello v Orofino Realty Co., 40 N.Y.2d 633, 635 [1976]; Finkelstein Newman Ferrara LLP v Manning, 67 A.D.3d 538, 540 [1st Dept 2009]). Vague and conclusory allegations are insufficient to maintain a cause of action (see Fowler v American Lawyer Media, 306 A.D.2d 113 [1st Dept 2003]).
Nuisance
The elements of this claim include a substantial interference with a plaintiffs use and enjoyment of land caused by conduct intentional in origin and unreasonable in character (see Copart Indus, v Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 568 [1977]). The Complaint alleges that defective glassware in a restaurant constitutes a nuisance to patrons. Notwithstanding that plaintiff does not assert facts related to the elements of a nuisance claim, plaintiff also does not argue against that branch of defendant's motion seeking its dismissal, rendering the claim abandoned (see Elam v Ryder Sys., Inc., 176 A.D.3d 675, 676 [2nd Dept 2019]; Moonstone Judge, LLC v Shainwald, 38 A.D.3d 215, 216 [1st Dept 2007]; Genovese v Gambino, 309 A.D.2d 832, 833 [2nd Dept 2003]). Thus, this cause of action is dismissed.
Strict Liability
In Hoover v New Holland N. Am., Inc. (23 N.Y.3d 41, 53 [2014]), the Court stated that where "a plaintiff is injured as a result of a defectively designed product, the product manufacturer or others in the chain of distribution may be held strictly liable for those injuries." The Court further stated: "To establish a prima facie case for design defect, the plaintiff must show that the defendant 'breached its duty to market safe products when it marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiffs injury' (Voss [v Black & Decker Mfg. Co.], 59 N.Y.2d [102] at 106-107 [1983]; see Adams v Genie Indus., Inc., 14 N.Y.3d 535, 542 [2010])." (id. at 54; see also Fasolas v Bobcat of N.Y, Inc., 33 N.Y.3d 421, 429 [2019]; Rabon-Willimack v Robert Mondavi Corp., 73 A.D.3d 1007, 1008 [2nd Dept 2010].) To establish liability on a strict products liability claim, a plaintiff would need to allege facts (1) that the product in question was not fit to be used as intended, (2) that the defect existed as of the time that it left the defendant's hands, (3) that the plaintiff used the product as it was intended to be used, (4) that the plaintiff would not have been able to discover any defect in the product through the exercise of ordinary care, and (5) that the defect was a substantial factor in causing the accident (see Winckel v Atlantic Rentals & Sales, 159 A.D.2d 124, 126 [2nd Dept 1990]).
A party outside the chain of manufacturing, selling or distribution cannot be held strictly liable for a defective product (see Laurin Mar. AB v Imperial Chem. Indus., 301 A.D.2d 367-368 [1st Dept 2003]). Defendant here was an end purchaser of the wine glass, not a seller, hence, it was not part of the distribution chain of manufacturers, sellers, or distributors, and thus is not subject to strict liability. Although the Third Cause of Action of the Complaint denominates this claim as one for "strict liability," plaintiff's attorney states (affirm, in opp. ¶ 33) that it is a res ipsa loquitor theory "alleged as strict liability..." The allegation is that defendant was in possession and control of the glassware, which was negligently released and disseminated to patrons resulting in injury. There is no allegation of a manufacturing or design defect, or failure to warn attributable to defendant. Defendant submits the affidavit of Lance Wilson, Ph.D., a Materials Scientist with a forensic engineering firm, who examined an exemplar of the wine glass, as well as defendant's procedures and products used to clean the wine glasses and determined that the glass had no defects that would cause it to spontaneously shatter, and that defendant's maintenance procedures were proper for the care of the glass. In opposition, plaintiff does not submit direct evidence that a defect existed. Thus, the court finds that the Complaint does not assert a claim for strict liability, nor does plaintiff raise an issue of fact as to strict liability.
To the extent that plaintiffs intent was to rely on the doctrine of res ipsa loquitur, this is a theory of negligence, not strict liability. In any event, res ipsa loquitor is not a separate theory of liability, therefore, since plaintiff pleads a cause of action for negligence, there is no need to plead a separate res ipsa loquitur claim which, under the proper circumstances, would be available for a jury to consider under the negligence cause of action (see Smith v Consolidated Edison Co. of N.Y, Inc., 104 A.D.3d 428, 4291 st Dept 2013]).
Summary Judgment - Negligence
A party moving for summary judgment must show prima facie an entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact (Stonehill Capital Mgt. LLC v Bank of the W., 28 N.Y.3d 439, 448 [2016]; Friends of Thayer Lake LLC v Brown., 27 N.Y.3d 1039, 1043 [2016]; Pokoik v Pokoik, 115 A.D.3d 428 [1st Dept 2014]; CPLR 3212 [b]). The inability to make such a demonstration must lead to denial of the motion, no matter how inadequate the opposition papers may be (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]; Santiago v Filstein, 35 A.D.3d 184, 186 [1st Dept 2006]). To defeat summary judgment, the party opposing the motion must show, also by producing evidentiary proof in admissible form, that there is a material question of fact that requires a trial (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; Kershaw v Hospital for Special Surgery. 114 A.D.3d 75, 82 [1st Dept 2013]; see Hoover v New Holland N. Am., Inc., 23 N.Y.3d 41, 56 [2014])]). Admissible evidence includes affidavits by persons having knowledge of the facts (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 N.Y.3d 498, 508 [2015]). The movant has the initial burden on the motion (see Gammons v City of New York, 24 N.Y.3d 562, 569 [2014]; Melman v Montefiore Med. Ctr., 98 A.D.3d 107, 137-138 [1st Dept 2012]; Jaroslawicz v Prestige Caterers, 292 A.D.2d 232, 233 [1st Dept 2002]). Summary judgment should be granted where it clearly appears that the issues are not genuine but feigned (see Glick & Dolleck v Tri-Pac Export Corp., 22 N.Y.2d 439, 441 [1968]; Garcia-Martinez v City of New York, 68 A.D.3d 428, 429 [1st Dept 2009]). Asserting mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to defeat summary judgment (see Whelan v GTE Sylvania, 182 A.D.2d 446, 449 [1st Dept 1992]; Bonghi v Firstcent Shopping Ctr., 116 A.D.2d 502, 504 [1st Dept 1986]).
In Pintor v 122 Water Realty, LLC, 90 A.D.3d 449, 451 [1st Dept 2011]), the court stated that the "owner of a premises may be held liable for an accident caused by a dangerous condition on the property if the plaintiff can demonstrate that the owner created the condition or had actual or constructive notice of it (see Hauptner v Laurel Dev., LLC, 65 A.D.3d 900, 902 [(1st Dept) 2009]). An owner can be deemed to have constructive notice of a dangerous condition if it is visible and apparent, and if the condition existed for enough time before the accident to permit the owner's employees to discover and remedy the problem (Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837 [1986])." Further, "a defendant is entitled to summary judgment as a matter of law when a plaintiff provides testimony that he or she is unable to identify the defect that caused his or her injury (see Rudner v New York Presbyt. Hosp., 42 A.D.3d 357 [(1st Dept) 2007]; Reed v Piran Realty Corp., 30 A.D.3d 319 [(1st Dept) 2006], Iv denied WNN3A 801 [2007]; Fishman v Westminster House Owners, Inc., 24 A.D.3d 394 [(1st Dept) 2005])." (Siegel v City of New York, 86 A.D.3d 452, 454 [1st Dept 2011].)
In support of its motion, defendant relies on, among other things, the deposition of its principal, Liyuwork Ayalew, who also provides an affidavit; the deposition of plaintiff; its statement of material facts; and the affidavit of its expert Lance Wilson, Ph.D.
In opposition, plaintiff submits the affidavits of two persons who were sitting at the same table as plaintiff who, like plaintiff, could not identify any defect in the wine glass. These individuals provided contradictory statements regarding where the waiter brought the subject glass from: one stated that it was from the kitchen and the other said it was from the bar. Liyuwork Ayalew, defendant's principal, stated in his affidavit that wine glasses are washed and dried in the kitchen. Evidence which tends to show that defendant's procedure may have been altered regarding the cleaning and drying of the subject wine is insufficient to raise a question of fact regarding whether defendant was negligent (see Pomahac v TrizecHahn 1065 Ave. of Ams., LLC, 65 A.D.3d 462, 465 [1st Dept 2009]).
The court declines to consider plaintiffs thermal glass theory as the cause of the wine glass breakage for several reasons: First, it was raised for the first time by plaintiffs counsel in his affirmation in opposition to the instant motion. It was not alleged in the Complaint, nor was it raised in the Bill of Particulars or in the deposition testimony, thus, defendant was not placed on notice that plaintiff would rely on this theory (see Mitchell v 423 W. 55th St., 187 A.D.3d 661, 662 [1st Dept 2020]). Second, thermal shock is not a matter commonly known to lay persons and requires the presentation of expert proof, which plaintiff failed to provide (see James v Wormuth, 21 N.Y.3d 540 [2013]; see also Sean R. v BMW of N. Am., LLC, 26 N.Y.3d 801, 809 [2016]). Additionally, the burden that a party must bear in opposing a summary judgment motion is not met by the unsubstantiated assertions or speculations of its attorney (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 327 [1986]).
Plaintiff fails to provide any evidence tending to establish that there was a defect in the wine glass. There are no allegations that defendant created the defect or had actual or constructive notice of a dangerous condition. Plaintiff testified at his deposition that he did not observe any defects in the glass, such as cracks or chips, and he was not aware of any complaints made by anyone to defendant regarding the condition of glassware, nor could he recall whether the glass was warm or cold, or how much pressure he applied to the glass when he picked it up with both hands.
Plaintiff invokes the doctrine of res ipsa loquitur, which is established by showing that the incident is one which ordinarily does not occur in the absence of negligence; was caused by an agency or instrumentality within the exclusive control of the defendant; and was not due to any voluntary action or contribution on the part of the plaintiff (see Morejon v Rais Constr. Co., 7 N.Y.3d 203, 209 [2006]; Dermatossian v New York City Tr. Auth., 67 N.Y.2d 219, 226-227 [1986]; Uddin v City of New York, 88 A.D.3d 489, 490 [1st Dept 2011]).
At the time the incident occurred here, the wine glass was under the control of plaintiff, not defendant. The glass, which had not been in use for more than three months before the incident, was filled with wine by one of plaintiffs companions, and did not break until after plaintiff grasped it with both hands. The court finds that since the glass was not in defendant's exclusive control at the time of the incident, the doctrine of res ipsa loquitur does not apply.
Accordingly, defendant's motion to dismiss the second and third causes of action for nuisance and strict liability and for summary judgment, is granted.
This constitutes the Decision and Order of the court.