Haesler v. N.Y. Athletic Club of N.Y.
| Decision Date | 10 May 2019 |
| Docket Number | Index No. 153176/2013 |
| Citation | 2019 NY Slip Op 31406 (U) |
| Parties | ANDREW HAESLER, Plaintiff v. NEW YORK ATHLETIC CLUB OF THE CITY OF NEW YORK, PETER DORAN, MATTHEW O'GRADY, and COLIN DROWICA, Defendants |
| Court | New York Supreme Court |
Plaintiff seeks damages for injuries he suffered when he was attacked and punched in the face while breaking up two altercations at defendant New York Athletic Club of the City of New York (NYAC). Plaintiff, a club member, claims he was assaulted and battered inside NYAC's Tap Room bar by defendant Drowica, another club member, and again in NYAC's lobby by Drowica and his guest, defendant Doran.
Drowica, Doran, and defendant O'Grady met at another bar after work around 5:30 p.m. on the evening of April 12, 2012, where Drowica drank two beers and Duran drank one. Drowica, Doran, and O'Grady then attended a Mercury Society event at NYAC from around 7:00 to 10:30 p.m. Drowica drank at least two beers and Doran drank four to five beers during the event. After the event, Drowica, Doran, and O'Grady proceeded to NYAC's Tap Room, where Drowica and Doran each consumed at least one more alcoholic drink.
Around 9:00 p.m. on April 12, 2012, plaintiff arrived at NYAC's Tap Room, where he met NYAC member Kent Oszmanski. John Nicholas, another NYAC member, joined plaintiff in the Tap Room after the Mercury Society event. Plaintiff and Nicholas were preparing to leave the Tap Room around 11:30 p.m. when they heard a commotion toward the back of the bar. Plaintiff went to that area to investigate and de-escalate the altercation. Plaintiff observed Oszmanski attempting to prevent a fight between O'Grady and another patron, with Doran nearby. Drowica also was watching the altercation between O'Grady and the other patron.
The parties dispute what happened next. Plaintiff testified at his deposition that Drowica approached plaintiff and punched him in his left eye. According to plaintiff, he then grabbed onto Drowica to prevent him from striking again, but Drowica still grabbed plaintiff's throat. After they were separated, plaintiff returned to the Tap Room, and Drowica, Doran, and O'Grady proceeded into the hallway. Both Drowica and Doran testified at their depositions that Drowica did not strike plaintiff or physically contact him at all.
Plaintiff testified that shortly after the initial fight ended he exited the Tap Room and observed Drowica, Doran, and O'Grady confronting a security officer. The three defendants returned to the Tap Room, but plaintiff stayed outside the room and asked a security officer to summon the police. Plaintifftestified that he proceeded downstairs to wait for the police, where he observed Drowica, Doran, and O'Grady pummeling Oszmanski in NYAC's lobby. According to plaintiff, when he intervened to break up the attack, Doran punched plaintiff in the face. Plaintiff further testified that, in self defense, he tackled Doran, taking both of them to the ground, where Duran, joined by Drowica, continued to assault and batter plaintiff.
Doran and Drowica testified that security officers briefly detained the two defendants until they broke free and returned to the Tap Room to retrieve their jackets. Accompanied by O'Grady, they then proceeded downstairs to the lobby, where Oszmanski accosted the three defendants. Doran and Drowica admitted that they pushed Oszmanski to the ground, but explained that they did so because they feared that he intended to attack them, and denied that anyone punched or kicked either Oszmanski or plaintiff.
The complaint claims that Doran, Drowica, and O'Grady assaulted and battered plaintiff and that NYAC negligently operated, managed, and maintained its premises by failing to provide adequate security. Plaintiff also claims that NYAC negligently hired, trained, and supervised its bartending and security employees and violated New York General Obligations Law § 11-101(1), the Dram Shop Act. NYAC cross-claims against Doran and Drowica for non-contractual, implied indemnification and for contribution and counterclaims against plaintiff for contractualindemnification. Doran cross-claims against NYAC and Drowica for contractual and non-contractual indemnification and for contribution. Drowica cross-claims against NYAC and Doran for non-contractual indemnification and for contribution. All parties have stipulated to dismiss all claims against defendant O'Grady.
NYAC now moves for summary judgment dismissing the complaint and all cross-claims against NYAC and for summary judgment on NYAC's counterclaim against plaintiff and cross-claims against Doran and Drowica. C.P.L.R. § 3212(b). Doran moves for summary judgment dismissing the complaint and all cross-claims against him. C.P.L.R. § 3212(b).
Building owners owe persons on their premises a duty of reasonable care to maintain the premises in a safe condition. Maheshwari v. City of New York, 2 N.Y.3d 288, 294 (2004); Tagle v. Jakob, 97 N.Y.2d 165, 168 (2001); CB v. Howard Sec., 158 A.D.3d 157, 164-65 (1st Dep't 2018); Banner v. New York City Hous. Auth., 94 A.D.3d 666, 667 (1st Dep't 2012). This duty includes taking minimum safety precautions to protect against other persons' reasonably foreseeable criminal acts. Maheshwari v. City of New York, 2 N.Y.3d at 294; Mason v. U.E.S.S. Leasing Corp., 96 N.Y.2d 875, 878 (2001); JG v. Goldfinger, 161 A.D.3d 640, 640 (1st Dep't 2018); CB v. Howard Sec., 158 A.D.3d at 164-65. See Pink v. Rome Youth Hockey Ass'n. Inc., 28 N.Y.3d994, 997-98 (2016). A danger was foreseeable if the owner knew or had reason to know from past experience that another person likely would act so as to endanger visitors. Jacqueline S. v. City of New York, 81 N.Y.2d 288, 294 (1993); Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 519 (1980). See Pink v. Rome Youth Hockey Ass'n, Inc., 28 N.Y.3d at 997-98.
NYAC maintains that it was not negligent in operating or securing its premises because it had no reason to believe that a fight would occur or that plaintiff would be assaulted, so the risk of danger to plaintiff was unforeseeable. Plaintiff, Nicholas, Drowica, and Doran all testified at their depositions that the initial altercation occurred suddenly. NYAC's general manager Roger Simon, bartender Luis Machin, and members plaintiff and Nicholas also testified at their depositions regarding their unawareness of any past fights at NYAC. NYAC thus establishes that the first altercation that led to the first assault on plaintiff was sudden and unforeseeable and therefore not actionable. Maheshwari v. City of New York, 2 N.Y.3d at 294; Ricaurte v. Inwood Beer Garden & Bistro Inc., 165 A.D.3d 586, 586-87 (1st Dep't 2018); Maria T. v. New York Holding Co. Assoc., 52 A.D.3d 356, 358 (1st Dep't 2008); Lewis v. Jemanda New York Corp., 277 A.D.2d 134, 134 (1st Dep't 2000).
Plaintiff fails to present any evidence in rebuttal demonstrating that NYAC knew or had reason to know that the fight in the Tap Room would occur or that plaintiff would be assaulted in the Tap Room. NYAC therefore is entitled to summary judgmentdismissing plaintiff's claim for negligent operation and security of the premises in connection with the fight and the assault on plaintiff in the Tap Room.
NYAC is not entitled, however, to summary judgment dismissing plaintiff's claims for negligent operation and security of the premises in connection with the second fight and the assault on plaintiff in NYAC's lobby. Plaintiff, Nicholas, Doran, and Drowica all testified that, immediately after the fight in the Tap Room, NYAC security officers responded and attempted to disperse the crowd and remove part of the crowd from the Tap Room. NYAC personnel thus were aware that the participants in the ensuing fight had fought shortly beforehand. The second fight involved the same participants and followed soon after the first fight, but not so immediately as to foreclose preventive measures. Therefore NYAC fails to establish that the second fight was either sudden or unforeseeable. Ricaurte v. Inwood Beer Garden & Bistro Inc., 165 A.D.3d at 586-87; Kavanagh v. Vigario, 309 A.D.2d 640, 640 (1st Dep't 2003); McKinnon v. Bell Sec., 268 A.D.2d 220, 221 (1st Dep't 2000).
NYAC further fails to establish that it was not negligent in securing the premises based on the testimony by plaintiff, Doran, and Drowica that NYAC's security officers detained Doran and Drowica after the Tap Room fight, but then released them without further supervision, allowing them to encounter Oszmanski and engage in the second fight. NYAC offers no evidence indicating that NYAC maintained any security presence either in the lobby ornear the participants of the previous fight to prevent the second fight, any attempt by security to remove any of the participants in the first fight from the premises, or any measures whatsoever to prevent the second fight. In sum, NYAC fails to establish that the second fight precipitating an assault on plaintiff was unforeseeable or that NYAC adequately secured the premises after the first fight or took reasonable measures to prevent the second fight. Ricaurte v. Inwood Beer Garden & Bistro Inc., 165 A.D.3d at 5 86-87; Kavanagh v. Vigario, 309 A.D.2d at 640; McKinnon v. Bell Sec., 268 A.D.2d at 221.
Finally, NYAC maintains that it nevertheless is entitled to summary judgment dismissing plaintiff's claim for negligent operation and security of the premises because plaintiff assumed the risk of injury when he intervened in the fight. The doctrine of assumption of risk, however, is limited to cases "appropriate for absolution of duty," such as claims for injuries arising from proximity to sporting events or from participation in athletic or recreational...
To continue reading
Request your trial