Opinion
702379/2015
04-20-2018
ZHI Eric ZHANG, Plaintiff(s), v. ABC CORP. d/b/a The One KTV, Grand Restaurant Group, Inc., New World Mall, LLC and Sol Goldman Investments, LLC, Defendant(s). Sol Goldman Investments, LLC, Third–Party Plaintiff, v. New World Mall, LLC, Third–Party Defendant.
Xue Chang, Esq., of the Law Offices of Gary S. Park, PC, Attorney for Plaintiff Zhi Eric Zhang, 39–01 Main Street, Suite 608, Flushing, New York 11354, T: (718) 445–1300 Boris Bernstein, Esq., of the firm Hardin, Kundla, McKeon & Poletto, PA, attorneys for Defendant/Third Party Defendant New World Mall, LLC, 110 William Street, 25th Floor, New York, New York 10038, T: (212) 571–0111 Angela Lurie Milch, Esq., of the firm Smith Mazure Director Wiliks Young & Yagerman, PC, attorneys for Defendant/Third Party Plaintiff Sol Goldman Investments, LLC 111 John Street, New York, New York 10038, T: (212) 964–7000 Carl M. Perri, Esq., of the firm Clausen Miller, PC, attorney for Defendant Grand Restaurant Group, Inc., 28 Liberty Street, 39th Floor, New York, New York 10005, T: (212) 805–3900, F: (212) 805–3939 No appearance on the motion: ABC Corp d/b/a/ The One KTV, Defendant Pro Se, 136–20 Roosevelt Avenue, 3rd Floor, Flushing, New York 1134
Xue Chang, Esq., of the Law Offices of Gary S. Park, PC, Attorney for Plaintiff Zhi Eric Zhang, 39–01 Main Street, Suite 608, Flushing, New York 11354, T: (718) 445–1300
Boris Bernstein, Esq., of the firm Hardin, Kundla, McKeon & Poletto, PA, attorneys for Defendant/Third Party Defendant New World Mall, LLC, 110 William Street, 25th Floor, New York, New York 10038, T: (212) 571–0111
Angela Lurie Milch, Esq., of the firm Smith Mazure Director Wiliks Young & Yagerman, PC, attorneys for Defendant/Third Party Plaintiff Sol Goldman Investments, LLC 111 John Street, New York, New York 10038, T: (212) 964–7000
Carl M. Perri, Esq., of the firm Clausen Miller, PC, attorney for Defendant Grand Restaurant Group, Inc., 28 Liberty Street, 39th Floor, New York, New York 10005, T: (212) 805–3900, F: (212) 805–3939
No appearance on the motion:
ABC Corp d/b/a/ The One KTV, Defendant Pro Se, 136–20 Roosevelt Avenue, 3rd Floor, Flushing, New York 1134
Denis J. Butler, J.
The following papers were read on: 1) the motion by defendant/third party plaintiff Sol Goldman Investments, LLC ("Goldman") for an order dismissing any and all claims and cross-claims against Goldman, and granting summary judgment against defendant/third party defendant, New World Mall LLC on Goldman's cross-claims and third-party claims; 2) the motion by defendant/third party defendant, New World Mall, LLC for an order granting summary judgment dismissing plaintiff's complaint and all cross-claims against New World Mall, LLC asserted by Defendant Grand Restaurant Group, Inc., and all cross-claims asserted by Defendant Goldman to the extent defendant/third party plaintiff seeks common law contribution and indemnification from defendant/third party defendant; and 3) the motion by defendant Grand Restaurant Group, Inc. for an order granting summary judgment and dismissing plaintiff's complaint and all cross-claims as against it.
Papers Numbered
Goldman's Notice of Motion, Affirmation, Affidavit and Exhibits E182–204
New World's Affirmation In Opposition, Affidavit E246–247
Grand Restaurant's Memorandum of Law In Opposition, Affidavit E248–249
Goldman's Reply Affirmation, Affidavit E252—253
Plaintiff's Affirmation In Opposition E257
Goldman's Reply Affirmation, Affidavit, Exhibits E260–263
New World Mall's Notice of Motion, Affirmation, Affidavit and Exhibits E205–218
Goldman's Affirmation In Partial Opposition, Affidavit of Service E250–251
Plaintiff's Affirmation In Opposition E258
New World's Affirmation In Reply, Affidavit of Service E264–265
Grand Restaurant's Notice of Motion, Affirmation, Affidavit and Exhibits E219–242
Affirmation In Opposition, Affidavit, Exhibit E243–245
Plaintiff's Affirmation In Opposition E256–259
Grand Restaurant's Memorandum In Reply E267
Grand Restaurant's Memorandum In Reply to Plaintiff's Opposition E266
Upon the foregoing papers, it is ordered that the above motions are determined as follows:
Plaintiff in this action sues for personal injuries allegedly sustained on April 28, 2012. Plaintiff's complaint alleges that he was "caused to be knocked down" on the third floor of the New World Mall, located at 136–20 Roosevelt Avenue, Flushing, New York, and further alleges that the Defendants were negligent in failing to maintain the premises in a reasonably safe manner. In his deposition testimony, Plaintiff alleges that he was beaten up by patrons of "KTV," a karaoke bar that occupied a portion of the third floor. He further testified that at the time of the assault he was working at a restaurant known as Imperial Crown, which occupied a portion of the third floor adjacent to KTV.
Defendant Sol Goldman Investments LLC ("Goldman") moves (Mot. Seq. 6) for summary judgment dismissing all claims and cross-claims against it on the ground that it was an out-of-possession landlord with no liability for the subject incident, and further moves for summary judgment in its favor on its claims for contractual indemnification against New World Mall, LLC.
Defendant New World Mall, LLC moves (Mot. Seq. 7) for summary judgment in its favor and dismissal of Plaintiff's complaint, on the ground that Plaintiff's claims are barred by the statute of limitations under CPLR § 215(3) for assault and battery claims, and on the additional grounds that New World Mall owed no duty and breached no duty to Plaintiff. Defendant also seeks dismissal of the cross-claims asserted by Grand Restaurant Group, Inc., and dismissal of Sol Goldman Investments LLC's claims for common law contribution and indemnification.
Defendant Grand Restaurant Group, Inc. moves (Mot. Seq. 8) for summary judgment dismissing all claims against it, on the ground that Plaintiff's claims are barred by Workers' Compensation Law § 11, and on the additional ground that it breached no duty to Plaintiff because the assault upon Plaintiff was not reasonably foreseeable.
A. Goldman's Summary Judgment Motion
1. Out-of-possession landlord
The evidence submitted by Goldman in support of its motion for summary judgment on the ground that it is an out-of-possession landlord includes, inter alia: a copy of a "Memorandum of Third Amendment of Lease" dated May 24, 2005, between the trustees of the Lillian Goldman Marital Trust and other related entities, as landlord, and Alexander's of Flushing Inc., as tenant, for the lease of properties including 136–20 Roosevelt Avenue, Flushing, New York; a bargain-and-sale deed transferring a portion of the 136–20 Roosevelt Avenue property to Sol Goldman Investments LLC; a copy of a lease between Alexander's of Flushing, as landlord, and New World Mall, LLC, as tenant; and the testimony of Kathleen Weeks.
The documentary evidence reflects that Defendant Goldman is the current owner of the land whereupon Plaintiff claims to have been injured, and that Goldman is the successor to the parties designated as landlords in the May 24, 2005 lease with Alexander's of Flushing, Inc.
Witness Kathleen Weeks, an employee of Solil Management LLC, which owns Sol Goldman Investments LLC, offered deposition testimony consistent with the documentary evidence. Weeks testified that in April 2012, Goldman owned the property located at 136–20 Roosevelt Avenue and "triple-net leased" the property to non-party Alexander's Incorporated. She testified that "we have nothing to do with the property but collect rent," and "everything else is on Alexander's." Ms. Weeks further testified that Alexander's "runs it, fixes it, maintains it, rents it, pays the taxes," and that Sol Goldman Investments has "nothing to do with the day to day workings of the building." Under the triple-net lease, Alexander's was allowed to lease the property "to anyone they want." Ms. Weeks was aware that Alexander's had leased the property to other tenants but was not aware of the details. When Sol Goldman Investments receives a summons and complaint relating to that particular building, Ms. Weeks sends it to Alexander's with a letter advising them that "we are the landlord out of possession, you have possession," and receives a letter from Alexander's insurance company saying they will handle the defense.
Xiaoming Wang, a bookkeeper for New World Mall's management company, testified that New World Mall paid rent to Alexanders. He first testified that Goldman was the landlord for the mall, and then testified that Alexander's was the landlord. He testified that no payments were ever made to Sol Goldman Investments, and that no one from Goldman was present on site.
The opposition papers submitted by Plaintiff and by Grand Restaurant Group, Inc. fail to raise a triable issue of fact. Because the uncontroverted evidence establishes that Defendant Sol Goldman Investment, LLC transferred full possession and control of the property where the assault occurred, "and never exercised any control over either the operation of the club or the conduct of its patrons," Sol Goldman Investment, LLC "cannot be held liable on the theory that they failed in their common-law duty to take reasonable measures to secure the club against foreseeable criminal activity." ( Bryan v. Crobar , 65 AD3d 997, 998 [2d Dept 2009].)
The branch of Goldman's motion seeking dismissal of all claims and cross-claims against it is therefore GRANTED.
2. Contractual Indemnification
In support of its argument that it is entitled to summary judgment on its contractual indemnification claim, Goldman points to the language of the lease between Alexander's and New World which states in pertinent part:
Tenant shall protect, indemnify, save and hold harmless Landlord ... and any Master Lessor ... from and against any and all Claims, which either (I) arise from or are in connection with the possession, use, occupation, management, repair, alternation, improvement, maintenance or control of the Demised Premises, or any portion thereof by Tenant, Tenant's Agents, or Tenant's invitees (including, but not limited to claims against Landlord arising from any acts, omissions or negligence of any of Tenant's customers); (ii) arise from or are in connection with any act or omission of Tenant, or Tenant's Agents or Tenant's invitees; (iii) result from any Default, breach, violation or non-performance of this Lease or any provision therein by Tenant; or (iv) result in injury to person or property or loss of life sustained in or about the Demised Premises .... Tenant shall pay to Landlord the costs of enforcement of this indemnity, including, without limitation, attorneys' fees and disbursements.
Goldman has established its entitlement to summary judgment against New World Mall on its contractual indemnification claim through the plain language of the subject lease, and by demonstrating Goldman's freedom from active negligence. (See Seeney v. Kee Associates , 15 AD3d 383 [2d Dept 2005].)
New World Mall articulates no arguments in opposition to the branch of Goldman's motion seeking summary judgment on its contractual indemnification claim. Rather, New World Mall merely argues that it owed no duty and breached no duty to Plaintiff, and therefore cannot be held liable to Goldman for common law indemnification or contribution, which is relief Goldman does not seek.
The branch of Goldman's motion seeking summary judgment on its contractual indemnification claim against New World Mall is GRANTED.
B. New World Mall's Motion for Summary Judgment
1. Statute of Limitations
New World Mall's argument that Plaintiff's claims are barred by the applicable statute of limitations lacks merit. In contending that the one-year statute of limitations for assault and battery applies to the instant action (see CPLR § 215[3] ), New World Mall asserts that "Plaintiff's incident clearly involved an assault." However, although this action "involves" an assault, Plaintiff has not asserted claims of assault or battery against the named Defendants. Rather, Plaintiff has asserted negligence claims against the Defendants, arguing that Defendants were negligent in failing take adequate measures to protect Plaintiff from assault by a third party. Accordingly, New World Mall's statute of limitations defense fails.
2. Breach of duty to Plaintiff
New World Mall fails to establish that it owed no duty to Plaintiff, merely because Plaintiff was an employee of the restaurant. "A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties." ( Bryan v. Crobar , 65 AD3d 997, 999 [2d Dept 2009].) New World Mall fails to submit evidence to establish prima facie that it relinquished control over the premises such that there was no basis to impose liability on it. (See Reidy v. Burger King Corp. , 250 AD2d 747, 748 [2d Dept 1998].) The record includes, inter alia, the testimony of New World Mall's witness Xiaoming Wang, who testified that Tian Ji Li, a shareholder of New World Mall, was responsible for managing the mall, including maintaining and controlling the common area on the third floor.
New World also fails to establish as a matter of law that the assault upon Plaintiff was a "spontaneous and unexpected" event that the Mall could not have reasonably prevented. What safety precautions may reasonably be required "is almost always a question of fact for the jury." ( Nallan v. Helmsley-Spear, Inc. , 50 NY2d 507 [1980].) "While the owner of a public establishment has the duty to control the conduct of persons on its premises when it has the opportunity to do so and is reasonably aware of the need for such control, it has no duty to protect customers against an unforeseen and unexpected assault." ( Petras v. Saci, Inc. , 18 AD3d 848, 848 [2d Dept 2005].) Summary judgment in favor of a defendant is appropriately granted where there is "no evidence presented by the plaintiff of any indicators of an escalating situation between the plaintiff and his assailants such that it could be said that the owner was aware of the disturbance or that he could have anticipated it." ( Languilli v. Argonaut Rest. & Diner, Inc. , 232 AD2d 375, 375 [2d Dept 1996].)
Here, Plaintiff testified that the assault happened around 2 a.m., while he was working the night shift. The restaurant employed for security purposes "an old man who was watching the restaurant at night," named Mr. Yang. Plaintiff has in the past observed security staff employed by the mall, who were usually positioned on the first floor near the entrance of the mall. On the day of the incident, Mr. Yang "came over to me and told me someone at KTV was drunk." The restaurant usually "put a line of tables to separate the restaurant from KTV at night," in order "to block the customers from KTV from coming into the restaurant." Mr. Yang told the Plaintiff that the "person who was drunk was very noisy," and that he "pushed down all of the tables that blocked the restaurant and KTV." Plaintiff went to investigate, and saw a young man who was "pretty big and a heavy build," who was "making noises and talking loud." Plaintiff told the man he could not come over to the restaurant side of the floor, and the man "started cursing me and continued to overthrow the tables." The man "appeared very drunk" and "very rude," and "it seemed like he was ready to be very physical." During this initial conversation the man pushed the Plaintiff "a little bit," on Plaintiff's chest. Plaintiff told him that if he continued to behave in that manner Plaintiff would call the police. The man then went back to KTV, and came back "very quickly," in "about one minute," with at "least 20 people" who started beating him. He lost consciousness, and upon regaining consciousness he saw that the police had arrived. Plaintiff testified that there had not been similar incidents in the restaurant before his incident, but that there "were a couple of times the police were called to" KTV. He testified that he never made any complaints about the security at Grand Restaurant and was not aware of any such complaints. He further testified that he did not make any complaints to KTV about their customers before the incident, nor was he aware of anyone who did. However, Plaintiff also testified that prior to the incident, he had "heard" about KTV customers "sometimes getting drunk and ending up fighting," but did not see it.
Plaintiff's wife, Connie Zhang, testified that she worked at the Grand Restaurant, and that she was at the location when the fight occurred and witnessed the incident. She witnessed the Plaintiff and the patron talking back and forth for about ten to fifteen minutes before the fight occurred.
Based upon the record before the Court, New World has not established as a matter of law that it could not have anticipated or prevented the assault upon Plaintiff. The branch of New World's motion seeking dismissal of Plaintiff's complaint is therefore DENIED.
3. Cross-claims against New World
New World Mall moves for summary judgment dismissing Grand Restaurant Group's cross-claims against the Mall for common law indemnification and contribution, contractual indemnification, and breach of contract to procure insurance, citing, inter alia, the sublease agreement between the two parties, and a letter from Grand Restaurant's insurance carrier agreeing to defend and indemnify New World Mall. Grand Restaurant Group, Inc. fails to oppose the motion. Accordingly, the branch of New World's motion seeking dismissal of Grand Restaurant Group's claims against New World is GRANTED without opposition.
Goldman fails to oppose the branch of New World's motion seeking dismissal of Goldman's common law indemnification and contribution claims against New World. Instead, Goldman argues that it is entitled to contractual indemnification. Accordingly, the branch of New World's motion seeking dismissal of Goldman's common law indemnification and common law contribution claims against New World is GRANTED without opposition.
C. Grand Restaurant Group, Inc.'s Summary Judgment Motion
Grand Restaurant Group, Inc. moves for summary judgment dismissing Plaintiff's claims on the ground that it did not violate any duty to Plaintiff because the criminal assault against Plaintiff was not reasonably foreseeable.
For the reasons set forth above, Grand Restaurant's argument based upon the unforeseeability of the assault fails.
Defendant Grand Restaurant Group, Inc. moves for summary judgment dismissing all claims against it on the alternate ground that it is an alter ego of Plaintiff's employer, Imperial crown Corp., and therefore Workers' Compensation Law § 11 provides Plaintiff's exclusive remedy against Grand Restaurant Group, Inc.
"A defendant moving for summary judgment based on the exclusivity defense of the Workers' Compensation Law must show, prima facie, that it was the alter ego of the plaintiff's employer." ( Cappella v. Suresky at Hatfield Lane, LLC , 55 AD3d 522 [2d Dept 2008].)
Here, the evidence establishes that Grand Restaurant Group, Inc. entered into a sublease with New World Mall, LLC to operate "a restaurant and KTV" on the third floor of the mall, where Plaintiff's incident occurred.
Plaintiff testified that in 2012 he worked as a manager for Imperial Crown Restaurant, located on the third floor of the New World Mall. He had "heard of" the name Grand Restaurant, and believed it to be the name of the restaurant and also the name of the karaoke bar, which were both on the third floor but had "different owners."
Connie Zhang, Plaintiff's wife, testified that she is a 25% shareholder in Grand Restaurant Group. She testified that "Grand Restaurant" was both the name of the company and a name for the restaurant that operated on the third floor of the mall. When asked whether Plaintiff as an employee of Grand Restaurant at the time of the incident, she asked, "you mean the company or the restaurant?," and then confirmed he was an employee of the restaurant. She testified that Plaintiff received his paychecks from Imperial Crown, which was the management company for the restaurant. She testified that "The Grand Restaurant Group and Imperial are two different entities," but there was no written agreement between the two entities.
A copy of a Workers' Compensation and Employer' Liability Policy issued to Imperial Crown Corp. Reflects that "Grand Restaurant" is listed as an additional insured.
The available record reveals questions of fact as to the nature of the relationship among Plaintiff, "Imperial Crown," and named Defendant Grand Restaurant Group, Inc. Because Grand Restaurant Group has failed to establish as a matter of law that it was the alter ego of Plaintiff's employer, Defendant Grand Restaurant Group Inc. has therefore failed to establish prima facie the applicability of a defense based upon Workers' Compensation Law § 11.
Grand Restaurant's motion for summary judgment is therefore DENIED.
Conclusion
The branch of Goldman's motion seeking dismissal of all claims and cross-claims against it is GRANTED. The branch of Goldman's motion seeking summary judgment on its contractual indemnification claim against New World Mall is GRANTED.
The branch of New World's motion seeking dismissal of Plaintiff's complaint is therefore DENIED. The branch of New World's motion seeking dismissal of Grand Restaurant Group's claims against New World is GRANTED without opposition, and the branch of New World's motion seeking dismissal of Goldman's common law indemnification and common law contribution claims against New World is GRANTED without opposition.
Grand Restaurant Group Inc.'s motion is DENIED in its entirety. All other relief not specifically addressed herein is DENIED.
This constitutes the Decision and Order of the Court.