Opinion
13127/2014
09-19-2019
Marie STEGNER, Individually and as Natural Mother and Legal Guardian of, Plaintiff, J.S., Plaintiff, v. MILFA INTERNATIONAL CORP. and Dunkin Donuts Franchise, LLC, Defendants.
Attorney for Plaintiff: Kenneth J. Ready & Associates, 1565 Franklin Avenue, Mineola, NY 11501 Attorney for Defendants: Baxter Smith Tassan & Shapiro, 99 North Broadway Hicksville, NY 11801
Attorney for Plaintiff: Kenneth J. Ready & Associates, 1565 Franklin Avenue, Mineola, NY 11501
Attorney for Defendants: Baxter Smith Tassan & Shapiro, 99 North Broadway Hicksville, NY 11801
William B. Rebolini, J.
Upon the following papers read on this motion by defendants for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint; Notice of Cross-Motion dated April 20, 2018, Expert Affidavit of Daniel C. Cox, sworn to on March 29, 2018, Attorney Affirmation in Support dated April 20, 2018 and Exhibits A though K annexed thereto; Affirmation in Opposition dated March 19, 2019 and Exhibits A and B annexed thereto, Expert Affidavit of Joel Schachter sworn to on March 14, 2019; Reply Affirmation dated May 7, 2019; it is
ORDERED that defendants' motion for summary judgment dismissing the complaint pursuant to CPLR 3212 is denied.
This is an action seeking damages for personal injuries alleged to have been sustained by the infant plaintiff as a result of the negligence of defendants' employees in connection with their service of hot tea on April 8, 2013 at the Dunkin Donuts store located at 4541 Sunrise Highway, Bohemia, New York. Plaintiffs commenced this action by the filing of a summons and complaint on July 2, 2014. Issue was joined by defendants Milfa International Corp. ("Milfa") and Dunkin Donuts Franchise, LLC ("Dunkin Donuts") on October 7, 2014 through the service of an answer with affirmative defenses. Plaintiffs served a verified bill of particulars dated January 25, 2015 alleging, inter alia , that defendants were negligent in failing to properly and securely affix a lid to the hot tea, in serving the hot tea at a temperature that exceeded industry standards, that was not fit for consumption, and that would cause serious burns if spilled, in failing to properly train their employees in the service of hot beverages, and in failing to properly train employees on securing lids to hot beverages, including hot tea. Plaintiff Marie Stegner was deposed on January 5, 2016, the infant plaintiff was deposed on January 5, 2016, the deposition of defendant Milfa by Nowshad Chowdhury was conducted on November 7, 2016, the deposition of defendant Milfa by Mohammed Islam was conducted on September 23, 2016, and the deposition of defendant Dunkin Donuts was conducted by Jeffrey Karlin on March 22, 2017, by Kathleen LeClair ("LeClair") on August 16, 2017, and by Gulam Choudhury on August 23, 2016. Defendants now move for summary judgment dismissing the complaint. In support of their motion, defendants submit an expert affidavit of Daniel C. Cox, an attorney affirmation, a copy of the pleadings, bill of particulars and the deposition transcripts of all those who provided testimony herein. Defendants also produce three videos of the subject incident. Plaintiffs submit in opposition, an attorney affirmation, two exhibits subject to a confidentiality agreement between counsel for the parties, and an expert report of professional engineer Joel Schachter. Defendants submit an attorney affirmation in reply.
The infant plaintiff testified, inter alia , that on April 8, 2013, she went with her mother, plaintiff Marie Stegner, to the Dunkin Donuts on Sunrise Highway where her mother ordered a large hot coffee and two donuts and also ordered her a small hot tea. The infant plaintiff further testified that she picked up the hot tea cup and the bag of donuts from the customer counter after her mother paid for the items and headed out of the store with her mother. She further testified that she did not take a sip of the tea, did not open the lid to the tea, and did not open the pull back tab on the cup of tea at any time. Plaintiff further testified that she then went to the parking lot where her mother's vehicle was located and entered the door behind the driver's door which was already open, that she put the bag of donuts that were in her left hand down on the seat, then with the hot tea cup in her right hand, she used her left hand to support herself as she moved over to the position behind the passenger's seat. When the infant plaintiff reached the area behind the front passenger seat, plaintiff testified that the hot tea splashed up and hit her right wrist. Plaintiff further testified that because the water was so hot, it made her jump up, causing all of the tea to come out of the cup and onto her left elbow and then all over her lap and her stomach.
Plaintiff Marie Stegner testified, inter alia , that she and her daughter went to the Bohemia Dunkin Donuts on Sunrise Highway on April 8, 2013 at approximately 5:00 p.m. Ms. Stegner confirmed that she purchased a large hot coffee, a small hot tea, and two donuts. She testified that she did not observe her beverage order being prepared, that her coffee was in a styrofoam cup and that the hot tea was in a paper cup, both of which had a Dunkin Donuts logo. She further testified that the coffee and tea had been placed on the customer counter and she did not witness defendants' employee placing the lids on the cups nor did she check the lids on either the coffee or hot tea cup. Ms. Stegner testified that when they left the Dunkin Donuts, her daughter was carrying the bag of donuts and the hot tea.
On behalf of the defendants, Mohammad Islam testified, inter alia , that he was the manager of the Dunkin Donut franchise where the incident occurred. Mr. Islam testified as to the training he received and the testing he completed in order to manage a Dunkin Donuts franchise. He further offered testimony regarding the accepted and standard temperature of hot beverages in the industry. He further testified that the Dunkin Donuts franchise he manages uses a Bunn machine to heat the water for use in hot tea and that his investigation revealed that the tea served to plaintiff Marie Stegner was prepared in the usual, basic fashion. Mr. Islam testified that the temperature of the Bunn hot water machine at the subject store was set or fixed so that the hot water is always between 196 and 200 degrees. Mr. Islam further testified that he was trained in how to properly place lids on cups for hot beverages and explained the process as placing the lid on the top of the cup and pressing down on it and "then check on the side by the finger on the top of the lid" meaning that the employee is to take a finger and in a circular motion move it around the entire lid to ensure that it is sealed. Also produced for a deposition on behalf of defendants was Gulam Choudhury, one of the owners of the subject Dunkin Donuts franchise. Mr. Choudhury, among other things, testified as to the training he received regarding the temperatures at which to serve hot beverages and that the particular Bunn coffee machine which is used at his franchise to make hot tea had the same settings today as when he was trained in the 1980s, and that the same equipment and procedures are used in all Dunkin Donuts stores. In particular, he was trained that the temperature at which to bring hot water for use in hot tea was 190 to 200 degrees and that this temperature has not changed since he received training in April of 2013. Mr. Choudhury also testified as to the training received to serve hot beverages and the process of placing lids on cups. Mr. Choudhury testified that employees are tested on their training in these and other areas and must pass a test before they are able to work at a Dunkin Donuts franchise. Mr Choudhury testified that he was familiar with the machine used to make hot tea and that the machine is replaced periodically, about every two years. He confirmed that the Bunn machine used on the date of the incident had fixed settings for the water temperature, that the temperature was set at between 190 and 200 degrees, and that it was their custom and practice to check the temperature of the water periodically by using a food service thermometer, which was done here. Mr. Choudhury also testified that he never received any complaints from customers of his franchise that the beverages served were too hot or that the lids were not affixed properly. Mr. Choudhury also confirmed that the process for placing lids on the cups was a simple one, which involved taking the cup, placing the lid on it and then putting your finger around the lid to secure it, and that this was the same process for styrofoam cups and smaller papers cups. Kathleen LeClair, the director of quality control and compliance for Dunkin Donuts also testified on behalf of the defendants. Ms. LeClair testified that the temperatures of hot beverages served at Dunkin Donuts were the industry standards, determined by The Speciality Coffee Association and the National Coffee Association, and that she works with the suppliers of equipment used at the franchises to ensure the industry standard specifications are met for the ranges of temperatures for the service of hot beverages. Ms. LeClair confirmed that the Bunn machine used by the subject Dunkin Donuts franchise was pre-set for temperatures of coffee and hot water and that employees cannot change the settings on the machines. Jeffrey Karlin, the director and legal counsel for defendant Dunkin Donuts also testified and provided details as to the process of preparing hot tea, indicating that when hot water is taken from the system used, it is the standard temperature across the beverage industry, that being anywhere from 190 to 200 degrees. Mr. Karlin testified that as soon as the hot water is transferred into a container, whether a carafe or a cup, it immediately begins losing temperature, and because the hot tea is not instantly provided to customers, the temperature at the point of delivery will be lower than 200 degrees and moreover, that if anything is added to the tea, that then would reduce the temperature further. Mr. Karlin also testified that burns from hot beverages are a combination of temperatures and time of exposure. He testified that the national trade associations endorsed serving hot beverages at 200 degrees as a safe temperature and that the serving temperature standard is what is necessary to make the best product. Mr. Karlin further noted that Dunkin Donuts has hot beverages available to children such as "kiddie's hot chocolate" that are served at a lower temperature. As to the lids used by Dunkin Donuts, he testified that they work with the supplier to design the cups and lids so that a seal is created causing the lid to firmly adhere to the cup. Mr. Karlin further testified through "the process of pressing down firmly on the rim of the cup, the lid should adhere safely to the cup such that it doesn't spill or leak." Mr. Karlin confirmed that he was not aware of any issues or problems with the cups and the lids staying on securely and there has been no cause to investigate the quality of the cups or lids. Mr. Karlin testified that Dunkin Donuts makes training materials available for the franchisee, which the franchisee can use to train their own employees on to how to adhere lids to cups containing hot beverages. Mr. Karlin testified that the cups used by Dunkin Donuts and its franchisees contain a warning to alert customers that the beverage is hot, has the potential to cause injury, and that customers should exercise care in handling the hot beverage.
In support of their motion, defendants submit three videos of the subject incident, showing the transaction from three different angles, as reported by the defendants' in-store surveillance system. The court notes that plaintiffs do not dispute the content of the videos, they agree that they are indeed the individuals in the videos, and that they depict the subject transaction on the date in question. The videos reveal the infant plaintiff and her mother entering the subject Dunkin Donuts store, the Dunkin Donuts employee preparing coffee in a large cup, placing a lid on the coffee cup, and then bringing the coffee cup to the customer counter. The video of the behind-the-counter view, shows the employee pressing on the lid to the coffee cup twice. All parties agree that the video then shows the employee preparing the hot tea. The video reveals the employee taking a 10 ounce cup from the cup dispenser, placing a tea bag in the cup, going to the machine and filling the cup with hot water, then taking the cup to the service counter, affixing a lid to the cup, ant then placing the hot tea cup on the customer counter. The video of the behind-the-counter angle shows the employee pressing the lid down on the hot tea cup six or seven times and applying pressure at different points around the hot tea cup during the process of affixing the lid to the cup. The videos of the customer counter show plaintiff Marie Stegner handling the hot tea cup, by grabbing it, picking it up, bringing it closer to her, and placing her hand on the lid for several seconds. The video then shows the employee retrieving donuts for the plaintiffs, plaintiff Marie Stegner paying the employee, the infant plaintiff grabbing the cup with the hot tea and the bag of donuts, and then both plaintiffs leaving the customer counter and heading towards the exit of the Dunkin Donuts store. It is undisputed that the lid to the hot tea cup did not become ajar while plaintiffs were in the subject Dunkin Donuts store.
Defendants also submit an expert report and sworn affidavit of Daniel C. Cox, the president and owner of Coffee Enterprises, and its division, Coffee Analysis and Tea Analysis, who opines that based upon his knowledge of the industry standards, 200 degrees Fahrenheit is a reasonable temperature at which to prepare and serve hot tea, and that the Bunn brewer at issue was reasonable, appropriate, and prepared hot beverages within accepted industry standards. Mr. Cox further indicated that the guidelines and recommendations of the Tea Association of the USA's suggest boiling black tea at 212 degrees Fahrenheit, while Dunkin Donuts franchises heat hot tea to approximately 200 degrees. Mr. Cox further indicates that the Bunn brewer at issue is programmed with a factory setting that cannot exceed 203 degrees Fahrenheit and that the Bunn brewer at issue cannot be increased or decreased by the user. Mr. Cox opines that the "practice of the Defendants with regard to the tea steeping and handling protocols are well within reasonable, accepted and customary industry standards for the proper preparation and serving of hot tea." Mr. Cox further opines that the Bunn brewer used by defendants "is an acceptable machine for preparing hot tea beverages for sale and distribution to consumers." Mr. Cox opines that based upon a review of the evidence submitted in support of defendants' motion for summary judgment, "there was no negligence on the part of defendants in it use of industry standard, and appropriate, lidded cups for service of its hot tea to the plaintiffs and other customers."
In opposition, plaintiffs argue that defendants have not established as a matter of law that the Dunkin Donuts employee properly fastened the lid to the hot tea cup and that it is plaintiffs who demonstrate, through the expert opinion of professional engineer, Joel Schachter, that defendants failed to properly secure the lid to the hot tea cup. Plaintiffs further argue that defendants have not presented prima facie evidence that it is customary and acceptable to serve a hot beverage to a 10 year-old, a person disabled by reason of age, such as the infant plaintiff herein. Plaintiffs assert there is no proof that the infant plaintiff appreciated the risk of serious injury associated with water heated to 200 degrees. According to plaintiffs, the uncontroverted evidence reveals that the lid to the hot tea cup was not opened by either of the plaintiffs and that the infant plaintiff did not pull back the sipping tab or attempt in any way to drink tea from the cup at any time prior to the incident.
Plaintiffs further assert, through their expert, who performed tests on cups and lids that were identical to the ones in use on the date of the incident, that the lid could not have been properly secured by the Dunkin Donuts employee. Plaintiffs' expert, Mr. Schachter, asserts that he performed tests on Dunkin Donuts cups and lids that were the same as those involved herein to determine the cup's capacity to retain its contents when turned fully upside down or dropped from 30 inches and tests were conducted to determine whether certain grip strengths would cause the cup to crush or the lid to dislodge from a cup with a properly secured lid and an improperly secured lid. Mr. Schachter opines that when the lid is properly fastened to the Dunkin Donuts 10 ounce hot tea cup, the cup will not leak or spill its contents if dropped 30 inches, if it is turned upside down nor will the hot tea cup crush or the lid become ajar if it is squeezed or gripped with moderately excessive force, that is, in his opinion a grip pressure ranging from 5 lbs to 16 lbs. However, Mr. Schachter further opines that if the lid is not properly secured, a grip of less than 4 lbs will dislodge the lid. Mr. Schachter opines with a reasonable degree of certainty that the failure of the lid in this instance to retain its contents was due to the negligence of the Dunkin Donuts employee "in serving a hot tea beverage without a secure lid in place."
Plaintiffs further assert that Dunkin Donuts franchises have experienced thousands of claims and lawsuits similar to the one at bar where it is alleged that hot beverage burns originated from improperly secured lids. Plaintiffs assert that the "extreme number of burn claims stemming from faulty lid placement" creates a question of fact as to whether Dunkin Donuts franchises have taken adequate measures to train its counter persons in hot beverage handling and in ensuring that lids are properly and securely fastened to hot beverage cups given the "thousands of patrons suffering serious burns originating from lid failures." Plaintiffs contend these product failures are sufficient proof of defendants' "institutional deficiencies in training, supervision, and management." Moreover, plaintiffs contend that the counter person in the subject videos "spent an unusually prolonged period pressing the lid to the cup, suggesting he had difficulty properly fastening it to the cup."
Lastly, plaintiffs assert that defendants have not established, prima facie, that the sale of a 200 degree hot beverage to a 10-year-old was acceptable as a matter of law and cite the case of McClean v. National Ctr. for Disability Servs., 30 AD3d 383, 816 NYS2d 551 [2d Dept. 2006] ), wherein a paraplegic alleged that he burned both his legs after an employee in a school cafeteria served him with excessively hot water in order for him to make tea. Plaintiffs contend that due to the disabilities of the infant plaintiff herein, that the temperature of the hot tea was unreasonably dangerous for its intended use and consumption by a 10-year-old, and that based upon the reports of both experts, that due to the infant plaintiff's young age and gender, her skin was more vulnerable to a burn injury.
In sum, plaintiffs argue that defendants have not established their entitlement to summary judgment in that they have not eliminated several genuine issues of fact in that defendants have failed to prove, that as a matter of law, that the Dunkin Donuts employee properly secured the lid to the hot tea cup and defendants have presented no evidence that it is acceptable to serve a 200-degree hot beverage to a 10-year-old.
In reply, defendants reiterate that the temperature of the hot tea was within the range of approved temperatures and that it was prepared and served in an industry appropriate fashion as confirmed by their expert, Mr. Cox. Defendants next assert that the testimony and objective evidence shows that the infant plaintiff was at all times with and under the care and supervision of her mother and that it was plaintiff, Marie Stegner, who ordered and purchased the hot tea for her daughter, which is confirmed by the deposition testimony of both plaintiffs. They assert, therefore, that defendants did not owe a special duty to the infant plaintiff, inasmuch as it was her mother who ordered the hot tea, paid for the hot tea, and then handed the hot tea to her daughter to carry, along with the bag containing donuts. They further assert that the video shows Marie Stegner reaching across the counter to retrieve the hot tea cup and moving it towards her after the Dunkin Donuts employee placed it on the customer counter. Defendants further argue that the video plainly shows the Dunkin Donuts employee affixing the lid to the hot tea cup and that this process was accomplished in 8 seconds. Defendants suggest that the video sufficiently evinces the proper placement of the lid on the hot tea cup and further, that the testimony of Mr. Islam, Mr. Choudhury, and Mr. Karlin confirm that the lid was affixed properly to the cup so that it would not spill or leak. Defendants furthermore assert that evidence of other lawsuits at other Dunkin Donuts franchises is not indicative of any negligence by the defendants herein and that plaintiff has not cited to any rulings or decisions wherein these defendants or any other Dunkin Donuts franchise were found liable for defective products, practices, or procedures with respect to the lids or cups used for hot beverages. Defendants otherwise contend that plaintiffs have not refuted their experts conclusions that the lids used by defendants were industry standard, appropriate, and used properly.
Summary judgment is a drastic remedy and should only be granted in the absence of any triable issues of fact (see Rotuba Extruders, Inc. v. Ceppos , 46 NY2d 223, 413 NYS2d 141 [1978] ; Andre v. Pomeroy , 35 NY2d 361, 362 NYS2d 131 [1974] ; Kolivas v. Kirchoff, 14 AD3d 493, 787 NYS2d 392 [2d Dept. 2005] ). It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient proof to demonstrate the absence of any material issues of fact ( Alvarez v. Prospect Hosp. , 68 NY2d 320, 324, 508 NYS2d 923, 925 [1986] ; Napolitano v. Suffolk Cty Dept. of Public Works, 65 AD3d 676, 884 NYS2d 484 [2d Dept. 2009] ). Failure to make such a showing requires a denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 853, 487 NYS2d 316, 318 [1985] ). Further, the credibility of the parties is not an appropriate consideration for the Court ( S.J. Capelin Assoc., Inc. v. Globe Mfg. Corp. , 34 NY2d 338, 357 NYS2d 478 [1974] ), and all competent evidence must be viewed in a light most favorable to the party opposing summary judgment ( Benincasa v. Garrubbo , 141 AD2d 636, 637, 529 NYS2d 797, 799 [2d Dept. 1988] ). Once a prima facie showing has been made, the burden shifts to the party opposing the summary judgment motion to produce evidence sufficient to establish the existence of a material issue of fact (see Alvarez v. Prospect Hosp. , supra ). However, conclusory allegations unsupported by competent evidence are insufficient to defeat a summary judgment motion ( Alvarez, supra , 68 NY2d at 324-325, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). A motion for summary judgment should be denied where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Chimbo v. Bolivar , supra ; Benetatos v. Comerford , 78 AD3d 730, 911 NYS2d 155 [2d Dept. 2010]).
"Negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination" ( Ugarriza v. Schmieder, 46 NY2d 471, 474, 414 NYS2d 304 [1979] ; Davis v. Commack Hotel, LLC, ––– AD3d ––––, ––– NYS3d ––––, 2019 WL 2844549 [2d Dept. 2019] ; see also Harris v. Manhattan & Bronx Surface Tr. Operating Auth., 138 AD2d 56, 57, 529 NYS2d 290 [1st Dept. 1988] ). Generally, the elements of a negligence claim are the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries (see Pulka v. Edelman , 40 NY2d 781, 390 NYS2d 393 [1976] ). There can be more than one cause of any injury and thus, proximate cause is generally an issue for the trier of fact ( Howard v. Poseidon Pools, Inc., 72 NY2d 972, 534 NYS2d 360 [2d Dept. 1988] ; see also Rosencrans v. Kiselak, 52 AD3d 492, 859 NYS2d 490 [2d Dept. 2008] ). Similarly, "whether a plaintiff's act is a superceding cause or whether it is a normal consequence of the situation created by the defendant are generally questions for the trier of fact to determine" ( Soomaroo v. Mainco El. & Elec. Corp., 41 AD3d 465, 838 NYS2d 119 [2d Dept. 2007] ; see also Rosencrans, supra ).
"Under New York Law, a defendant may be properly held liable for the personal injuries caused by his or her having served a beverage that, because of its excessive temperature, was unreasonably dangerous for its intended use, and the drinking or other use of which presented a danger that was not reasonably contemplated by the consumer" ( Khanimov v. McDonald's Corp., 121 AD3d 1052, 1053-54, 995 NYS2d 1919 [2d Dept. 2014] ; McClean v. National Ctr. for Disability Servs., 30 AD3d 383, 384, 816 NYS2d 551 [2d Dept. 2006] ; Fung-Yee Ng v. Barnes & Noble, Inc., 308 AD2d 340, 764 NYS2d 183 [1st Dept. 2003] ). Where a product by its very nature has a dangerous attribute, liability is imposed only when the product has an attribute not reasonably contemplated by the purchaser or is unreasonably dangerous for its intended use (see Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 479, 426 NYS2d 717 [1980] ; Huppe v. Twenty-First Century Rests., 130 Misc 2d 736, 738, 497 NYS2d 306 [Sup. Ct. Broome Cty. 1985] aff'd 116 AD2d 797, 498 NYS2d 332 [3d Dept. 1986] ). In order to make a prima facie showing, a defendant is "obligated to present proof that the [hot beverage] served to the plaintiff had not been heated beyond reasonably expected limits" ( Khanimov, 121 AD3d at 1053 [internal quotation marks omitted] ). With respect to the cups and lids used, "a manufacturer or seller need not incorporate safety features to its products so that no harm will come to a user no matter how careless she may be and not matter what the circumstances of its use" ( Robinson, 49 NY2d at 481 ).
Here, defendants assert they did not breach a duty of care to plaintiffs in the preparation, service and sale of the hot tea to plaintiff Marie Stegner. Defendants produced sufficient evidence through the expert affidavit of Mr. Cox and the deposition testimony of Mr. Islam and Mr. Choudhury that the tea dispensed from the Bunn machine at the Dunkin Donuts on the date in question was fixed at the industry standard of approximately 200 degrees, that the Bunn machine was operating within the set prevailing industry standard temperature parameters, and that there was no special duty owed by defendants to the infant plaintiff due to her age (see Sekkat v. Huitres NYC, Inc., 156 AD3d 738, 67 NYS3d 217 [2d Dept. 2017] ) inasmuch as her mother ordered, purchased, and handed the hot tea to the infant plaintiff to carry out of the Dunkin Donuts store. Indeed, there is no indication from the testimony or the videos that the Dunkin Donuts employee handed the hot tea beverage to the infant plaintiff either directly or indirectly. Plaintiffs do not raise an issue of fact with respect to the temperature of the hot tea served at the subject Dunkin Donuts either by way of any evidence that it was hotter than it should have been, or that it exceeded the reasonable and customary standards for hot tea, nor do plaintiffs come forward with any evidence to create a question of fact that the hot water dispensed from the subject Bunn machine was not fixed at the industry standard of between 190 and 200 degrees for the serving of hot tea on the date of the incident (see Olliver v. Heavenly Bagels, Inc., 189 Misc 2d 125, 729 NYS2d 611 [Sup. Ct. Nassau Cty. 2001] ; see also Sekkat v. Huitres NYC, Inc., 156 AD3d 738, 67 NYS3d 217 [2d Dept. 2017] (defendant established prima facie that soup served to child was not unreasonably dangerous for its intended use but was served within an acceptable range of temperature); cf Khanimov v. McDonald's Corp., 121 AD3d 1052, 995 NYS2d 191 [2d Dept. 2014] ; Titsworth v. Chan Fu Restaurant Corp., 2015 WL 11110814 at *6-*7 [Sup. Ct. Orange Cty. 2015] ). Thus, the evidence establishes that the temperature of the hot tea was not excessively hot or considered dangerous for its intended use (see Huppe, supra, 130 Misc 2d at 740 citing Sheehan v. City of New York, 40 NY2d 496, 503, 387 NYS2d 92 [1976] ).
Defendants, however, have not established prima facie that the lid was affixed properly to the hot tea cup. Defendants' expert offers no opinion as to the proper or accepted method of affixing the lid to the cup at issue and does not opine as to whether the Dunkin Donuts employee followed the proper and accepted procedures in affixing the lid to the hot tea cup, as illustrated in the videos submitted by defendants. Indeed, the video shows the Dunkin Donuts employee pressing down on the lid, however, the manner in which the lid was secured to the cup does not conform with what Mr. Islam and Mr. Choudhury testified as being the proper method for affixing the lid. A review of the behind-the-counter video does not show the employee putting his finger around the lid to secure it, as both Mr. Islam and Mr. Choudhury confirmed is the usual and proper procedure for securing the lid to the cup. Rather, the video depicts the employee pressing down on the lid several times at a few locations on the lid but it does not precisely show the employee placing his finger on the top of the lid and moving it around the entire circumference of the lid to secure it. Thus, defendants' evidence creates a question of fact on this issue. In addition, the video shows one method used by the employee to secure the coffee cup lid and a different method employed for affixing the lid to the hot tea cup. Indeed, as plaintiffs argue, the employee appeared to spend more time affixing the lid to the hot tea cup than the coffee cup. The employee in the video pressed down on the lid to the hot tea cup more times and for a longer period of time than he did when affixing the lid to the coffee cup. Thus, defendants' video creates a question of fact in this regard as well in that Mr. Choudhury testified that the process for affixing the lids is the same process for hot coffee and hot tea cups. A review of the video further discloses other issues of fact regarding causation that must be determined by a jury, in particular, whether the actions of plaintiff Marie Stegner or her daughter, either separately or in combination, had any effect on the lid becoming either loosened or ajar (see Huppe v. Twenty-First Century Restaurants of America, Inc., 130 Misc 2d 736, 739-40, 497 NYS2d 306, 309 [Sup. Ct. Broome Cty. 1985] ). In that regard, the video depicting the area of the customer counter shows plaintiff Marie Stegner moving the hot tea cup, placing her hands and/or fingers on the lid of the hot tea cup for several seconds, and shows her handing the hot tea cup to her daughter to carry. Moreover, the testimony of the infant plaintiff creates a question of fact as to whether her movements in getting into her mother's car with the hot tea cup and bag of donuts and thereafter positioning herself to the area behind the passenger's seat had any impact on the lid or whether the stated actions of plaintiff Marie Stegner, in combination with those of her infant daughter, had any effect on the lid becoming dislodged ( Id ). All of these questions of fact must be decided at trial.
Inasmuch as defendants have not demonstrated their prima facie entitlement to summary judgment on the issue of whether the Dunkin Donuts employee negligently affixed the lid to the hot tea cup, denial of their motion is required, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985] ; LaRosa v. Town of Hempstead, 237 AD2d 579, 655 NYS2d 620 [2d Dept. 1997] ). Notwithstanding, plaintiffs have raised issues of fact through their expert who opines that had the lid been securely fastened to the hot tea cup, it would not have come off of the cup had the cup been completely inverted, dropped from a height of 30 inches, or squeezed with a force of fourteen pounds and that moreover, if the lid had not been properly secured to the cup then a force of less than 4 pounds would not only crush the cup but also would "completely dislodge the lid allowing the hot beverage to splash all over the immediate area." As plaintiff's expert opines, the "tight seal cannot occur unless the lid is properly placed on the cup lid. Any slight deviation of the application will render the seal ineffective." Inasmuch as there is no testimony or evidence to dispute the infant plaintiff's testimony as to how the hot tea splashed up and hit her right wrist, plaintiffs' expert creates a question of fact as to whether the lid was properly secured to the cup. The expert further opines that "although the store videos show the employee placing the lid on the cup, it does not provide enough detail to rule out the improper securing of the cup lid to the cup."
Accordingly, defendants' motion for an order granting them summary judgment dismissing the complaint is denied ( CPLR 3212 ).