Hedges v. E. River Plaza, LLC

• Decision Date: 17 January 2018
• Docket Number: 101854/12
• Citation: 94 N.Y.S.3d 538 (Table),58 Misc.3d 1211 (A)
• Parties: Michael HEDGES, As Guardian Ad Litem of Marion Hedges, An Incapacitated Person, and Michael Hedges, Individually, and Dayton Hedges, An Infant by his Father and Natural Guardian Michael Hedges, and Michael Hedges, Individually, Plaintiffs, v. EAST RIVER PLAZA, LLC, Tiago Holding, LLC, Blumenfeld Development Group, Ltd., Forest City Enterprise, Inc., Forest City Ratner Companies, Inc., ERP Management LLC, Planned Security Service Inc., Target Corporation, Costco Wholesale Corporation and Bob's Discount Furniture of NY, LLC, Defendants. Tiago Holding, LLC, Blumenfeld Development Group, Ltd., Forest City Enterprise, Inc., Forest City Ratner Companies, Inc., ERP Management LLC, Third–Party Plaintiffs, v. Jeovanni Rosario and Raymond Hernandez, Third–Party Defendants. Planned Security Service Inc., Second Third–Party Plaintiff, Jeovanni Rosario and Raymond Hernandez, Second Third–Party Defendants.
• Court: New York Supreme Court

58 Misc.3d 1211 (A)

94 N.Y.S.3d 538 (Table)

Michael HEDGES, As Guardian Ad Litem of Marion Hedges, An Incapacitated Person, and Michael Hedges, Individually, and Dayton Hedges, An Infant by his Father and Natural Guardian Michael Hedges, and Michael Hedges, Individually, Plaintiffs,

v.EAST RIVER PLAZA, LLC, Tiago Holding, LLC, Blumenfeld Development Group, Ltd., Forest City Enterprise, Inc., Forest City Ratner Companies, Inc., ERP Management LLC, Planned Security Service Inc., Target Corporation, Costco Wholesale Corporation and Bob's Discount Furniture of NY, LLC, Defendants.

Tiago Holding, LLC, Blumenfeld Development Group, Ltd., Forest City Enterprise, Inc., Forest City Ratner Companies, Inc., ERP Management LLC, Third–Party Plaintiffs,

v. Jeovanni Rosario and Raymond Hernandez, Third–Party Defendants. Planned Security Service Inc., Second Third–Party Plaintiff, Jeovanni Rosario and Raymond Hernandez, Second Third–Party Defendants.

101854/12

Supreme Court, New York County, New York.

Decided on January 17, 2018

Attorneys for the Plaintiffs: Kramer Dillof Livingston & Moore, 217 Broadway, New York, NY 10007

Attorneys for Defendant/Third–Party Plaintiffs Blumenfeld Development Group, Forest City Ratner Companies, LLC, ERP Management, LLC, Tiago Holdings, LLC, and Forest City Enterprises, Inc.: Wilson, Else, Moskowitz, Edelman & Dicker, LLP, 1133 Westchester Avenue, White Plains, New York, 10604

Attorneys for Defendant/Second–Third Party Plaintiff Planned Security Service, Inc.: Pillinger Miller Tarallo LLP, 570 Taxter Road, Suite 275, Elmsford, NY 10523

Attorneys for Defendant/Third Third–Party Plaintiff Target Corporation: Simmons Jannace and Deluca LLP, 43 Corporate Drive, Hauppauge, NY 117788, and Shaub Ahmuty Citrin & Spratt, LLP, 77 Water Street, New York, NY 10005 (Timothy R. Capowski, Tiffany A. Miao, of counsel)

Attorneys for Defendant Bob's Discount Furniture of NY, LLC: Smith Mazure Director Wilkins Young & Yagerman, P.C., 111 John Street, New York, NY 10038

Attorneys for Defendant Costco Wholesale Corporation: Gallagher, Walker Bianco & Plastaras Esqs., 98 Willis Avenue, Mineola, New York, 11501

Attorneys for J.R. and R.H.: c/o New York State Office of Children and Family Services Legal Bureau, 52 Washington Street, Room 141, Rensselaer, New York 12144

Carmen Victoria St. George, J.

In this action, plaintiff Marion Hedges (Plaintiff), her son, Dayton Hedges, and her husband, Michael Hedges, sue to recover damages for injuries sustained by the Plaintiff as a result of being struck by a shopping cart which was hurled over a railing on the fourth floor of the East River Plaza Shopping Center located on East 117th Street in Manhattan. Dayton Hedges, who was with his mother at the time she was struck and injured, sues for negligent infliction of emotional distress; and Michael Hedges sues for loss of services. Plaintiffs sue the shopping center's owner and management company, several tenant stores, and the security company. By separate motions (seq. nos. 014, 015, 016, 017 and 018), all parties move or cross move for summary judgment, in whole or in part, on various negligence and/or indemnification claims and cross claims. The motions are consolidated for purposes of their disposition.

BACKGROUND

East River Plaza Shopping Center (East River Plaza or the shopping center or the mall) is owned by defendant Tiago Holdings, LLC (Tiago) and managed by defendant ERP Management LLC (ERP). Defendants Blumenfeld Development Group, Ltd., Forest City Enterprises, Inc., and Forest City Ratner Companies (collectively, with Tiago and ERP, the Tiago defendants) have an ownership interest in Tiago. Defendants Target Corporation (Target), Costco Wholesale Corporation (Costco), and Bob's Discount Furniture of NY, LLC (Bob's), are tenants of the shopping center pursuant to leases with Tiago.

East River Plaza is a five-level retail shopping center with an attached multi-level parking facility. In addition to the ground level, there are four levels of retail stores identified as the first, second, third and fourth levels. See Floor Plan, Ex H to Gaier Aff. in Opp. to Tiago Motion and in Support of Plaintiff's Cross Motion (Gaier Aff./Tiago). Costco is on the first level, Target is on the second level, and Bob's is on the fourth level. All areas of the shopping center outside the retail stores, including plazas and walkways along and between stores, pedestrian bridges to the parking garage, and the parking garage, are common areas for which Tiago is responsible.

Planned Security Service Inc. (Planned Security) was retained by ERP, as Tiago's agent, to provide security services for the common areas of the shopping center, pursuant to a contract in effect on October 30, 2011. See Contract Security Service Agreement (Agreement), Ex. L to Burke Aff. in Support of Tiago Defendants' Motion (Burke Aff.). Under the Agreement, Planned Security was obligated to provide, as "basic services," "security services for maintaining the safety and protection of customers, invitees and employees of the Shopping Center while in or using the Common Areas including, but not limited to, the services designated on Schedule A." Id. , Art. 2, § 1. Services under Schedule A included patrolling the common areas of the shopping center, on foot and by vehicle; inspecting the common areas to detect anything unusual; "looking for and reporting anything unusual, ... or hazards to anyone's safety;" maintaining reports; meeting with local police at least once a month concerning criminal activity in the area; visually monitoring and operating all security CCTV equipment; and properly hiring, training and supervising its employees. Planned Security also agreed to "provide additional security services with respect to the Shopping Center and/or Common Areas to the extent requested by" ERP. Id. , Art 2, § 2.

Pursuant to the Agreement, Planned Security acknowledged and agreed "that at all times [it] shall maintain the minimum personnel coverage set forth in the Minimum Coverage Schedule attached." Id. , Art. 2, § 1. "Subject to its obligation to provide adequate security for the Shopping Center, ... [Planned Services] shall perform the Services at such times and in such manner as [it] may determine." Id. , Art. 2, § 2. Planned Services further warranted "that it is, and will continue to be, aware of criminal activity in the vicinity of the Shopping Center and that it will modify its level and nature of service consistent with the then prevailing criminal activity so as to insure that the Shopping Center and Common Areas are safe." Id.

On the afternoon of October 30, 2011, Marion Hedges drove with her 14–year-old son to the shopping center, parked on the first level of the parking garage, and went with her son to Costco to buy Halloween candy for underprivileged children. After the Plaintiff and her son exited the store, at approximately 5:45 p.m., they walked across a roadway to the parking garage pay station, where Plaintiff was hit by a metal shopping cart thrown by two adolescent boys over a railing from the pedestrian bridge above located on the fourth floor of the shopping center (the incident). As a result, Marion Hedges suffered severe, incapacitating injuries.

A significant portion of this case is not in dispute, namely: the parties agree that the incident occurred in a common area of the shopping center, (See Transcript of Oral Argument, dated February 28, 2017 (Feb. Tr.), at 16), and that the events leading up to the incident are recorded on security cameras in the shopping center.¹ It is essentially undisputed that on October 30, 2011, at about 5:45 p.m., three adolescent boys left Bob's, and while walking on the common area walkway on the fourth level, two of the boys grabbed a shopping cart belonging to Target and pushed it toward the railing. One of the boys then stopped the other two from pushing the cart over the railing and left the area. The two other boys then took the shopping cart and moved it closer toward the railing and then lifted it over the railing along the pedestrian bridge, and started to leave. When one of the shopping cart's wheels got stuck in the railing, the boys went back to the cart to move it, causing it to drop four floors down to the first level, hitting the Plaintiff. The two boys who threw the cart over the railing, third-party defendants Jeovanni Rosario (Rosario) and Raymond Hernandez (Hernandez) (together, the boys or the minor defendants), were arrested and convicted as juveniles. They have not appeared in this case and third-party plaintiffs have obtained a default judgment against them as to liability.

Parties' Motions

Target moves (seq. no. 014) for summary judgment dismissing the complaint and all cross claims against it. Target also seeks summary judgment on its cross claims against the Tiago defendants (for contractual and common-law indemnification), and breach of contract (for failure to procure insurance), and against Planned Security (for common-law indemnification). Subsequent to submission of this motion, by stipulation dated October 5, 2016, the plaintiffs settled their claims against Target; and all cross claims of Costco, Bob's, and Planned Security against Target were thereby discontinued, as were Target's cross claims for contribution against Planned Security and the Tiago defendants. See Stipulation dated Oct. 5, 2016 (Oct. 2016 Stip.).

Target remains in the case solely to pursue its cross claims for contractual and common-law indemnification and a defense against Tiago, and for common-law indemnification against Planned Security. As explained by its counsel at oral argument, Target's motion seeks to recover the settlement amount it paid to plaintiffs, and defense costs, as well as costs of prosecuting its cross claims. See Nov. Tr. at 4–5, 6–7, 8, 19. It also seeks summary judgment on its cross claims against the Tiago defendants for breach of contract for failing to name Target as an additional insured. Id. at 5, 8,...