Opinion
Index No. 515802/2018
05-17-2022
Katia TOUSSAINT as Administratrix of the Estate of decedent Anthony Rene Nazaire a/k/a/ Anthony Nazaire, Deceased, and Katia Toussaint, Individually, Plaintiffs, v. CORNELL UNIVERSITY, Omega Psi Phi, Omega Psi Phi Delta Mu Chapter, Omega Psi Phi Fraternity, Inc., Robert Alfonzo, Debo Sodeke, University Events Management Planning Team, John Doe 1-5 (members of the University Events Management Planning Team not presently known), Jane Doe 1-5 (members of the University Events Management Planning Team not presently known); Cornell University Police Department, Investigator Justin Baum, and Chief of Police Kathy Zoner., Defendants.
Attorney for Plaintiffs: Alissa A. Mendys, Esq., Rende, Ryan & Downes, LLP, 202 Mamaroneck Avenue, 6th Floor, White Plains, New York 10601, (914) 681-0444, amendys@rrd-law.com Attorneys for Defendants: CORNELL UNIVERSITY, UNIVERSITY EVENTS MANAGEMENT PLANNING TEAM, CORNELL UNIVERSITY POLICE DEPARTMENT, INVESTIGATOR JUSTIN BAUM and CHIEF OF POLICE KATHY ZONER., Joe H. Tucker, Jr., Esq., Brock J. Atkins, Esq., The Tucker Law Group, Ten Penn Center, 1801 Market Street, Suite 2500, Philadelphia, PA 19103, (215) 875-0609, jtucker@tlgattorneys.com Attorneys for Defendants: OMEGA PSI PHI, OMEGA PSI PHI DELTA MU CHAPTER, OMEGA PSI PHI FRATERNITY, INC., ROBERT ALFONZO, and DEBO SODEKE, CHARTWELL LAW, CARMEN A. NICOLAOU, ESQ., 81 Main Street, Suite 100 White Plains, NY 10601, (914) 421-7777, cnicolaou@chartwelllaw.com
Attorney for Plaintiffs: Alissa A. Mendys, Esq., Rende, Ryan & Downes, LLP, 202 Mamaroneck Avenue, 6th Floor, White Plains, New York 10601, (914) 681-0444, amendys@rrd-law.com
Attorneys for Defendants: CORNELL UNIVERSITY, UNIVERSITY EVENTS MANAGEMENT PLANNING TEAM, CORNELL UNIVERSITY POLICE DEPARTMENT, INVESTIGATOR JUSTIN BAUM and CHIEF OF POLICE KATHY ZONER., Joe H. Tucker, Jr., Esq., Brock J. Atkins, Esq., The Tucker Law Group, Ten Penn Center, 1801 Market Street, Suite 2500, Philadelphia, PA 19103, (215) 875-0609, jtucker@tlgattorneys.com
Attorneys for Defendants: OMEGA PSI PHI, OMEGA PSI PHI DELTA MU CHAPTER, OMEGA PSI PHI FRATERNITY, INC., ROBERT ALFONZO, and DEBO SODEKE, CHARTWELL LAW, CARMEN A. NICOLAOU, ESQ., 81 Main Street, Suite 100 White Plains, NY 10601, (914) 421-7777, cnicolaou@chartwelllaw.com
Lillian Wan, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of the defendants’ motions for summary judgment.
The following e-filed documents, listed by NYSCEF document number (Motion 04) 83-120, 162-169, 183 and (Motion 05) 122-161, 170-182, and 184-186 were read on the defendants’ motions for summary judgment.
This action arises from an altercation, and the subsequent stabbing of decedent Anthony Nazaire, a 19-year-old student of Ithaca College, by Nagee Green (Green), a local resident, after attending a social event hosted by Cornell University's Omega Psi Phi Fraternity's local chapter, Delta Mu, on August 27, 2016. The event was held in the Memorial Room, at Willard Straight Hall, which is located on the Cornell University campus, in the City of Ithaca and State of New York. The altercation occurred on Ho Plaza, approximately 400 to 450 feet from Willard Straight Hall, at the intersection of Campus Avenue and College Road, which was located on the Cornell University premises.
The plaintiffs’ complaint alleges four causes of action sounding in negligence, including, inter alia, improper supervision and understaffing of the event; failure to properly supervise, control and maintain the police and secure the premises; failure to properly hire and train the defendants’ employees; joint and several liability, and a derivative claim by the decedent's mother, plaintiff Katia Toussaint.
Defendants Cornell University, also named as "University Events Management Planning Team," in this action, Police Officer Justin Baum and Chief of Police Kathy Zoner, (Cornell defendants) move for summary judgment pursuant to CPLR § 3212, and dismissal of the plaintiffs’ complaint (Motion 04). They argue that: 1) they had no duty to prevent a spontaneous and unforeseeable attack at an intersection of a city street; 2) as owners of the university premises where the event took place they did not have a duty to protect the defendant from a criminal assault by a third-party outside of the premises, at the intersection of a city street; 3) the Cornell defendants did not breach a legally cognizable duty of care to the decedent because they took "reasonable measures" to protect the decedent while he was on campus attending the event, and at most that duty was to monitor and patrol the area where the event was taking place; and 4) even if the Cornell defendants breached some duty owed to the decedent, the unforeseeable acts of a third party severed any causal connection between the defendants’ alleged negligence and the decedent's injuries.
Defendants Omega Psi Phi Fraternity, Inc. s/h/a Omega Psi Phi, Omega Psi Phi Delta Mu Chapter, Omega Psi Phi Fraternity, Inc., Robert Alfonso i/s/h/a Robert Alfonzo, and Debo Sodeke (Omega defendants) also seek summary judgment, pursuant to CPLR § 3212, and dismissal of the plaintiffs’ complaint (Motion 05). The Omega defendants argue that they did not owe a duty of care to the decedent, and that Green's actions were the sole proximate cause of Nazaire's death. The Omega defendants also seek dismissal of the derivative claim of Nazaire's mother, Katia Toussaint. After oral argument, and upon careful consideration of the parties’ submissions, the defendants’ summary judgment motions are granted for the reasons set forth below.
The altercation which resulted in the death of Anthony Nazaire allegedly began after the Omega event ended, at approximately 1:45 a.m., as the decedent and a friend, Rahiem Williams (Williams), who also attended the event, were walking towards the intersection of Ho Plaza. According to Williams’ deposition testimony, Williams and another event attendee, Samone Thomas-Owens (Thomas-Owens), had a brief verbal dispute after Williams bumped into her while walking towards Ho Plaza. Williams believed the dispute was over, and he and the decedent continued on. Williams testified that suddenly and without warning, Williams and the decedent were struck from behind by Green. Initially, Williams was not aware that he had been stabbed, and when he looked over at the decedent he saw him on the ground bleeding profusely from his mouth. The campus police arrived within one minute, and an ambulance arrived within three minutes. Williams further testified that he did not see Green or Thomas-Owens at or prior to the event, and that the argument and stabbing had no correlation to any occurrence that took place at the event. Thomas-Owens testified that while at the gathering she observed that Green was in attendance, and she did not observe any disputes or altercations involving Green.
Sergeant Anthony Piedigrossi (Piedigrossi) testified that at the time of the incident he worked as a special project sergeant for the Cornell University Police Department (CUPD). Prior to the event, Piedigrossi determined that one police officer would be assigned to the event, and this decision was made after considering several factors, including the number of attendees, whether others besides Cornell and Ithaca college students were to attend, and whether alcohol would be served. He further testified that no single factor was determinative in his decision to assign one police officer, and ultimately, CUPD Officer Justin Baum (Baum) was assigned to the event. According to Piedigrossi, an event of 300 persons was not a concern for one officer, and the purpose of having an officer assigned was to provide police presence, deter criminal activity, and work with the students. Baum's responsibility was to remain at the event and handle only the event from beginning to end, and had nothing to do with patrolling the intersection of College Avenue and Campus Road, near Ho Plaza, where the incident took place.
The Chief of Police for the CUPD, Kathy Zoner (Zoner), testified that the determination by Piedigrossi to have one officer assigned to the event was based on the totality of the event, prior events and Piedigrossi's judgment. He was also to consider all aspects of safety, including the size and location of the event. Ultimately, Zoner approved having one officer present at the event.
Adebowale Sodeke (Sodeke) was a member of the Delta Mu Chapter of Omega Psi Phi in August of 2016, and was involved with generating the paperwork required by Cornell in anticipation of the event. He testified that not every event required a police presence, but it was usually required for social gatherings. The reservation request for the event was listed as 300 attendees, which was the maximum capacity for Willard Straight Hall, however he expected 150 to 200 people to attend. Sodeke met with Piedigrossi to discuss police presence for the event. The event was scheduled to begin at 10:00 p.m. and end at 2:00 a.m.; however it ended at 1:45 a.m. According to Sodeke, there were ten event monitors from the Omega fraternity that evening, including him, and Cornell had two hall monitors. The monitors’ responsibilities included walking around the room, conducting pat-downs for alcohol, collecting the fee to enter, and checking identification. Sodeke testified that the gathering was uneventful, and that there were no altercations at a similar gathering the previous year in 2015. He testified that he did not observe any safety issues when the gathering ended as the attendees were leaving the premises.
Police Officer Baum testified that he was assigned to the event, and provided security, and had the authority to handle the safety of the event. Baum testified that approximately 200 people attended, and that it was an alcohol-free party. At 1:45 a.m., the party ended when an announcement was made, and all attendees were required to exit the building. He further testified that no safety issues arose during the gathering, and that it was uneventful. Baum requested Sergeant Kyle Sandy (Sandy) to come to Ho Plaza around the time that the party was ending in order to have a greater police presence. Less than five minutes after Sandy's arrival at Ho Plaza, a call came in that a fight was occurring there. He explained that the distance from Willard Straight Hall to College Road, where the stabbing took place, was approximately 450 feet. He heard arguing, but did not see an altercation. Both he and Sandy ran to the scene, which took approximately thirty seconds, and they arrived at College Avenue in less than one minute after receiving the communication from dispatch that a fight was taking place there. Upon Baum and Sandy's arrival, Baum observed that the altercation had ended, and Nazaire and Williams were on the ground.
To prevail on a cause of action alleging negligence, the plaintiff must establish the existence of a duty, a breach of that duty, proximate cause, and damages. Where there is no duty there can be no breach, and no liability. See Fox v Marshall , 88 AD3d 131 (2d Dept 2011) ; Luina v Katharine Gibbs School NY, Inc. , 37 AD3d 555 (2d Dept 2007). The existence of a legal duty presents a question of law for the court. See Eiseman v State of New York , 70 NY2d 175 (1987). "New York has affirmatively rejected the doctrine of in loco parentis at the college level and colleges have no legal duty to shield their students from the dangerous activity of other students." See Eiseman v State of New York , 70 NY2d at 190. Under certain circumstances, a college may be held liable for injuries sustained by a student while on campus. See Ayeni v County of Nassau , 18 AD3d 409 (2d Dept 2005) ; Luina v Katharine Gibbs School NY, Inc. , 37 AD3d 555. However, the scope of the landowner'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." See Maheshwari v City of New York , 2 NY3d 288 (2004), quoting Nallan v Helmsley-Spear, Inc. , 50 NY2d 507 (1980) (internal quotation marks omitted).
When the acts of a third party intervene between the defendant's conduct and the plaintiff's injury the issue of whether a defendant is liable is determined by whether the intervening act "is a normal or foreseeable consequence of the situation created by the defendant's negligence." See Derdiarian v Felix Contr. Corp. , 51 NY2d 308, 315 (1980) ; see also McPherson v New York City Housing Authority , 228 AD2d 654, 655 (2d Dept 1996) (holding that "[t]he causal connection between a criminal act in an essentially open-air, public area, and any negligence on the part of the defendant, is too attenuated, as a matter of law, to serve as a basis for the plaintiffs’ recovery"). 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." See Maheshwari v City of New York , 2 NY3d at 295, quoting Derdiarian v. Felix Contr. Corp. , 51 NY2d 308 (internal quotation marks omitted). As aptly stated by the Court of Appeals, "foreseeability shall be a measure of liability." See Basso v Miller , 40 NY2d 233, 241 (1976).
In Ayeni , the Appellate Division, Second Department, found that the defendants made a prima facie showing of entitlement to summary judgment "by tendering evidence that the attack on plaintiff was unforeseeable, and that, in any event, the defendants did not breach any duty owed to him." See Ayeni , 18 AD3d at 410. The court in Ayeni also noted that although the defendants became aware that a fight was about to take place shortly before the attack, "the plaintiff failed to articulate what more, if anything, the defendants could or should have done in that brief period of time to prevent or stop [the attack]." Id. , 18 AD3d at 411. In Luina , the court similarly found that the defendant college established prima facie entitlement to judgment as a matter of law by submitting evidence that a single punch by a fellow classmate "was a sudden, unexpected, and unforeseeable act." Luina , 37 AD3d at 556.
In Maheshwari , the defendants were responsible for providing security in the parking areas for a Lollapalooza concert that drew a crowd of 25,000 people. Police officers were assigned to patrol the parking areas. The plaintiff went to the concert to distribute pamphlets, and while in one of the parking areas the plaintiff was assaulted by four unidentified men. When the attack occurred, none of the officers were patrolling the parking area where the assault took place. The plaintiff argued, inter alia, that the crime was foreseeable because the defendants had notice of criminal activity at previous Lollapalooza events, and that the defendants’ negligence in providing security proximately caused his injury. The Court of Appeals held that the attack was an "independent act far removed from defendants’ conduct," and that "the criminal assault broke the causal nexus." See Maheshwari , 2 NY3d at 295. The Court further found that the attack was "extraordinary and not foreseeable or preventable in the normal course of events." Id. In reaching its determination, the Court noted that the types of crimes committed at past Lollapalooza concerts were of a lesser degree than a criminal assault, and "would not lead defendants to predict that such an attack would occur or could be prevented." Id. Notably, the Court stated that "[a] random criminal attack of this nature is not a predictable result of the gathering of a large group of people." Id.
Likewise, in Lindskog v Southland Rest., 160 AD2d 842 (2d Dept 1990), the plaintiff was allegedly assaulted by an unidentified assailant shortly after he walked in the men's room of the defendant's restaurant, and the plaintiff was ultimately stabbed in the neck with a bottle. The plaintiff argued that the defendant was negligent in maintaining security at the premises at the time of the incident. The Appellate Division, Second Department, held that a landowner has no legal duty "to protect against an occurrence which is extraordinary in nature and, as such would not suggest itself to a reasonably careful and prudent person as one which should be guarded against," quoting Silver v Sheraton-Smithtown Inn , 121 AD2d 711, 711 (2d Dept 1986) (internal quotation marks omitted); see also O'Connor v Syracuse Univ. , 66 AD3d 1187, 1189 (3rd Dept 2009) (relying on Maheshwari , the court held that the scope of the duty to spectators at a hockey game located on the premises of Syracuse University, "is defined according to the likelihood that such behavior will occur and endanger spectators based on past experience, and no duty is imposed to protect patrons against unforeseeable and unexpected assaults").
In the instant matter, the Cornell and Omega defendants have established their prima facie entitlement to summary judgment as a matter of law. While the defendants owed the decedent a duty of care to protect him from reasonably foreseeable criminal acts of third parties, while on its premises, the evidence clearly establishes that Green's act of stabbing the decedent was sudden and unexpected, and therefore unforeseeable. Ayeni , 18 AD3d at 410 ; Luina , 37 AD3d at 556. The deposition testimony of Williams, Baum, Sodeke and Thomas-Owens revealed that the Omega event was uneventful, and that there were no altercations, or safety issues that arose during the gathering that would have made Green's act foreseeable to the defendants. The testimony also established that Green was at the gathering, as well as Thomas-Owens, and that there had been no interaction or conflict between the decedent, Williams, Green and Thomas-Owens. In fact, Williams testified that he did not see Green or Thomas-Owens at the event or prior to the event, and that the argument and stabbing had no connection to any occurrence at the gathering. Thomas-Owens testified that while at the party she observed that Green was in attendance, and she did not observe any disputes or altercations. The testimony of the witnesses also established that the defendants had no prior notice of violent propensities by Green. According to the testimony of both Williams and Thomas-Owens, the altercation occurred after the party ended, as they were walking toward Ho Plaza. By all witness accounts, the incident was over in a matter of minutes, and Officer Baum and Sergeant Sandy, who were standing outside of Willard Straight Hall at the time of the occurrence, were on the scene in less than a minute after receiving a communication from dispatch that a fight was taking place at Ho Plaza.
Under the totality of the circumstances presented here, it is unclear what measures could have been taken by the defendants to prevent Green's sudden, extraordinary and unexpected act of stabbing the decedent. This is especially true, considering that there had been no notice to the defendants during the event that there were any hostilities between the decedent, Williams, Green and Thomas-Owens, and in fact according to Williams, he was not even aware that Green was at the gathering. Moreover, Sodeke's deposition testimony reveals that there were no altercations or safety issues at the previous year's Omega event that might have indicated the need for additional security at the subject event.
In opposition, the plaintiff has failed to submit evidence sufficient to raise a triable issue of fact. See Alvarez v Prospect Hosp. , 68 NY2d 320 (1986) ; Zuckerman v City of New York , 49 NY2d 557 (1980). The cases relied upon by the plaintiff are distinguishable from the instant matter. Bell v Board of Educ. of City of NY , 90 NY2d 944 (1997), involved a sixth-grade student who attended an outing at a park, which was sponsored by the school and the police department. Seven teachers and four or five aides supervised the group. The teacher realized that the student was missing when he took a head count in preparation for return to the school. Although he was aware that the student was missing he did not inform the school or the authorities, and the teacher and the class left the park without the plaintiff, stopping first at the student's home. In the meantime, the student hurried back to the park when informed by another student that the class had left, and when she could not locate the class she started to walk home alone, and was attacked by three junior high school students. The Court of Appeals held, inter alia, that the attack was a foreseeable result of the danger created by the defendant's alleged lack of supervision, which was intended to "shield vulnerable schoolchildren from such acts of violence." Id. , 90 NY2d at 947. The facts presented here, relating to allegations of negligent security at an event held on the premises of a college, are clearly distinguishable from those in Bell .
Plaintiff's reliance on Fowler v Yonkers Gospel Mission , 67 AD3d 635 (2d Dept 2009) is also misplaced. The Appellate Division, Second Department, in Fowler found an issue of fact existed as to whether the Yonkers Gospel Mission & Home was negligent in failing to find the knife kept in a dorm room by a resident, who fatally stabbed the plaintiff decedent. The court held that the Mission exercised control over the residents’ daily lives, emphasizing that "this is not a case where the Mission had no ability or authority to control [the assailant's] actions." Id. , 67 AD3d at 637. Similarly, the facts of Rotz v City of New York , 143 AD2d 301 (1st Dept 1988), are not applicable to the instant case. In Rotz , the plaintiff was injured during a stampede while attending a free Diana Ross concert held in Central Park that contained what the plaintiff described as a "tremendous crowd." Id. , 143 AD2d at 302. The plaintiff alleged, inter alia, that the defendants failed to provide adequate crowd-control measures to avert the risk of such an occurrence. In reversing the lower court's grant of summary judgment in favor of the defendants, the court held that there was an issue of fact as to whether the defendants’ failure to employ adequate supervision and crowd-control measures for the concert was a foreseeable consequence of the situation created by the defendants.
The affidavit of plaintiff's expert, Dennis M. Savard, Ph.D., fails to raise an issue of fact. The affidavit is speculative and conclusory, and is based on facts that have either not been established or are irrelevant to the inquiry necessary to a determination of the defendants’ summary judgment motions. In particular, contrary to deposition testimony, Mr. Savard speculates that the altercation occurred because of overcrowding when the attendees were exiting the event, and that the altercation occurred because of alcohol or marijuana consumption. Further, Mr. Savard's affidavit ignores the highly relevant fact, established by the deposition testimony of Williams and Thomas-Owens, that the stabbing had nothing to do with any occurrence that took place at the event, and that the stabbing occurred after the event ended, approximately 450 feet from Willard Straight Hall. Mr. Savard's affidavit also does not state how additional police officers could have prevented the sudden and unexpected stabbing of the plaintiff by Green after the event ended, while they were 450 feet away from the event venue.
In light of the Court's findings in favor of the defendants, it is unnecessary to address the Omega defendants’ argument that plaintiff Katia Toussaint's derivative claim should be dismissed.
The remaining contentions are without merit.
Accordingly, it is hereby
ORDERED , that the Cornell defendants’ motion for summary judgment (Motion 04) is GRANTED ; and it is further
ORDERED , that the Omega defendants’ motion for summary judgment (Motion 05) is GRANTED .
This constitutes the decision and order of the Court.