COHEN v. DELICATESSEN
| Decision Date | 01 April 2011 |
| Docket Number | MOTION #003,INDEX #2612/2007 |
| Parties | JENNA COHEN, an infant under the age of 14 years, by her parent and natural guardian, MARCIE COHEN, and MARCIE COHEN, individually, Plaintiff(s), v. BEN'S KOSHER DELICATESSEN & RESTAURANT INC., and "JOHN DOE", Defendant(s). BEN'S KOSHER DELICATESSEN & RESTAURANT, INC., Third-Party Plaintiff, v. ANDREW W. COHEN, an infant under the age of 14 years by his parent and natural guardian, BRIAN COHEN, Third-Party Defendant, |
| Court | New York Supreme Court |
The following papers read on this motion:
Notice of Motion.............................................................................1
Reply Affirmation...........................................................................1
Affirmation in Opposition................................................................1
Upon the foregoing papers, it is ordered that third- party defendant's motion for summary judgment is determined as hereinafter set forth.
The third -party defendant has moved for summary judgment on the issue of liability pursuant to CPLR §3212 on the ground that there are no triable issues of fact with regard to third-party defendant.
The primary action was filed against defendants Ben's Kosher Delicatessen & Restaurant, Inc (hereinafter Ben's) and John Doe for alleged injuries plaintiff, infant Jenna Cohen (hereinafter Jenna) incurred while patronizing Ben's, located at 59 Old Country Road, Carle Place, NY. While at Ben's, on or about December 2, 2006, defendant John Doe allegedly spilled boiling water upon the infant plaintiff, Jenna, causing her to sustain alleged serious and permanent personal injuries. Depositions were taken of both Jenna and Resul Senturk (hereinafter Senturk), the identified employee waiter that spilled the water on Jenna. After Senturk's deposition, defendant Ben's served a third-party summons and complaint on Andrew Cohen (hereinafter Andrew) alleging "affirmative, active, and primary negligence" on the part of Andrew, who was six-years-old at the time of the incident.
In his motion for summary judgment, third- party defendant argues that to create a question of fact that a six-year-old child is liable for negligence, that third- party plaintiff must demonstrate that Andrew owed the plaintiff or third -party plaintiff a duty; there was a breach of that duty and that third-party defendant's breach of this duty was the proximate cause of the plaintiff's injuries. Movant argues that he owed no duty to the waiter or to Jenna and there is no demonstration via Senturk's affidavit that Andrew owed such duty. Movant also argues that Senturk's affidavit consisted of conclusory statements that do not demonstrate that Andrew was the cause of the tripping. Movant also asserts that Senturk's affidavit was contradictory with Senturk's deposition testimony and contradicted in a way to attempt to create a triable issue of fact. Movant argues that third -party plaintiffs' affidavit from the waiter was an attempt to raise a triable issue of fact with feigned issues.
In his deposition the waiter, Senturk, testified that as he was walking down the center aisle with a tray of hot water and tea bags that he observed Andrew and Jenna at a two-seat booth. He testified that both were not seated, but rather half standing half seated with one knee in the booth. When Senturk was five feet into the aisle, about 15 to 20 seconds later, Andrew got up to walk toward his parents when Andrew's right forearm and elbow came into contact with Senturk and the tea cup spilled onto the saucer, and "everything just went down." In his sworn affidavit, obtained by third -party plaintiffs after the instant motion was made, Senturk indicated that "Andrew Cohen hit me and caused me to trip as I was walking down the aisle of the restaurant and that the "hot water spilled out of the cup.. .as a direct result of the young boy hitting me and causing me to trip."
In addition to arguing that there is no triable issue of fact, the instant motion to dismiss is made by Andrew, in part, that Andrew is not liable as a matter of law based on his age and status as non sui juris. Andrew argues that a six-year-old patron in a restaurant, acting as a normal six-year-old in the same circumstances, was too young to appreciate the dangers of his surroundings at the time of the alleged incident.
The role of the court on a motion for summary judgment is "not to determine credibility, but whether there exists a factual issue, or if arguably there is a genuine issue of fact" J. Capelin Associates, Inc. v. Globe Mfg. Corp., 34 NY2d 338, 313 NE2d 776, 357 NYS2d 478 (1974). Alvarez v Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 925, 501 NE2d 572 (1986). Here, the third -party defendant has met its burden and shifted the burden to the third-party plaintiff (Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 (1980)).
An opponent to a summary judgment motion may show an acceptable excuse...
To continue reading
Request your trial