Hedges v. E. River Plaza, LLC

• Citation: 43 Misc.3d 278,2013 N.Y. Slip Op. 23463,981 N.Y.S.2d 894
• Parties: Michael HEDGES as Guardian ad Litem of Marion Hedges, an Incapacitated Person, Michael Hedges Individually, and Dayton Hedges, an Infant by His Father and Natural Guardian Michael Hedges, 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.
• Decision Date: 23 July 2013
• Court: United States State Supreme Court (New York)

43 Misc.3d 278

981 N.Y.S.2d 894

2013 N.Y. Slip Op. 23463

Michael HEDGES as Guardian ad Litem of Marion Hedges, an Incapacitated Person, Michael Hedges Individually, and Dayton Hedges, an Infant by His Father and Natural Guardian Michael Hedges, 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.

Supreme Court, New York County, New York.

July 23, 2013.

Carmine A. Rubino Esq., Kramer, Dillof, Livingston & Moore, New York, for Plaintiffs.

Stephen B. Kahn Esq., Pillinger Miller Tarallo, LLP, Elmsford, for Defendant Planned Security Service Inc.

Richard J. Calabrese Esq., Gallagher, Walker, Bianco & Plastaras, LLP, Mineola, for Defendant Costco Wholesale Corporation.

Howard J. Snyder Esq. and J. Jay Young Esq., Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, for Defendant Bob's Discount Furniture of NY, LLC.

LUCY BILLINGS, J.

Plaintiff mother, Marion Hedges, her son Dayton Hedges who accompanied her, and her husband Michael Hedges, suing derivatively and as her guardian ad litem, seek damages for her life changing injuries when two minor customers of the East River Plaza shopping center in New York County threw a shopping cart from the fourth level of the center onto her at the ground level. Plaintiffs sue the shopping center's owners, management, and tenant stores that plaintiffs claim were responsible for security in the area of the injury, for controlling the rowdy customers who became the assailants, and for controlling the stray shopping carts from which those customers selected their instrumentality.

I. THE MOTION TO DISMISS CLAIMS AGAINST BOB'S DISCOUNT FURNITURE

Defendant Bob's Discount Furniture of NY, LLC, one of several large retail stores in the shopping center, moves to dismiss the complaint and cross-claims against this defendant based on documentary evidence, C.P.L.R. § 3211(a)(1), and failure to state a claim. C.P.L.R. § 3211(a)(7). Bob's Discount Furniture rented part of center's fourth level, from which an elevated pedestrian bridge crossed to the parking garage attached to the center. Bob's Discount Furniture claims that, under its lease with the East River Plaza owner, co-defendant Tiago Holding, LLC, this elevated walkway, from which two boys threw the shopping cart, was a common area of the complex for which the tenant bore no maintenance or security responsibilities, including a duty to remove any stray shopping carts.

Insofar as Bob's Discount Furniture relies on its lease, however, no witness attests to the signatures on the lease or to circumstantial authentication. IRB–Brasil Resseguros S.A. v. Portobello Intl. Ltd., 84 A.D.3d 637, 923 N.Y.S.2d 508 (1st Dep't 2011); Babikian v. Nikki Midtown, LLC, 60 A.D.3d 470, 471, 875 N.Y.S.2d 20 (1st Dep't 2009); Bank of New York v. Dell–Webster, 23 Misc.3d 1107(A), 885 N.Y.S.2d 710 (Sup.Ct. Bronx Co.2008). See Singer Asset Fin. Co., LLC v. Melvin, 33 A.D.3d 355, 357–58, 822 N.Y.S.2d 68 (1st Dep't 2006); Acevedo v. Audubon Mgt., 280 A.D.2d 91, 95, 721 N.Y.S.2d 332 (1st Dep't 2001); Fields v. S & W Realty Assoc., 301 A.D.2d 625, 754 N.Y.S.2d 348 (2d Dep't 2003). Therefore the lease is not admissible documentary evidence that the court may consider to support a motion to dismiss claims pursuant to C.P.L.R. § 3211(a)(1). Greenapple v. Capital One, N.A., 92 A.D.3d 548, 550, 939 N.Y.S.2d 351 (1st Dep't 2012); Advanced Global Tech., LLC v. Sirius Satellite Radio, Inc., 44 A.D.3d 317, 318, 843 N.Y.S.2d 220 (1st Dep't 2007); 1911 Richmond Ave. Assoc., LLC v. G.L.G. Capital, LLC, 60 A.D.3d 1021, 1022, 876 N.Y.S.2d 151 (2d Dep't 2009). See Muhlhahn v. Goldman, 93 A.D.3d 418, 419, 939 N.Y.S.2d 420 (1st Dep't 2012).

To establish this tenant's nonliability, Bob's Discount Furniture relies not just on its lease, but also on non-documentary evidence outside the complaint's allegations, that this store did not own, possess, control,or use any shopping carts or allow them into the store, and the cart thrown onto Marion Hedges belonged to co-defendant Target Corporation. Target was another large retail store in the shopping center.

Part of this evidence is a Bob's Discount Furniture store security camera recording of the boys who dropped the shopping cart leaving this store without a shopping cart. According to Bob's Discount Furniture employee Joseph Klein, the video recording then shows the boys pushing a cart from the common area at a distance from the front of the store. Even if Klein authenticates the video recording, this evidence, along with the remainder of his affidavit and the affidavit of the store manager concerning the absence of responsibility for shopping carts or maintenance, may not be considered to support a motion to dismiss claims pursuant to C.P.L.R. § 3211(a)(1) and (7). Lawrence v. Graubard Miller, 11 N.Y.3d 588, 595, 873 N.Y.S.2d 517, 901 N.E.2d 1268 (2008); Solomons v. Douglas Elliman LLC, 94 A.D.3d 468, 469, 941 N.Y.S.2d 595 (1st Dep't 2012); Tsimerman v. Janoff, 40 A.D.3d 242, 835 N.Y.S.2d 146 (1st Dep't 2007). See Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 (2002); 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152, 746 N.Y.S.2d 131, 773 N.E.2d 496 (2002); Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 (1994); Correa v. Orient–Express Hotels, Inc., 84 A.D.3d 651, 924 N.Y.S.2d 336 (1st Dep't 2011).

II. THE CLAIMS AGAINST BOB'S DISCOUNT FURNITUREA. Factual Allegations

The complaint's allegations against Bob's Discount Furniture are exceedingly broad and vague to the effect that the store negligently failed to keep its premises safe and failed to provide adequate security for its customers. The only specific allegation applicable to this defendant, among other defendants, is that it failed to respond adequately to prior complaints or reports of persons throwing objects off the elevated walkway outside its store.

Plaintiffs in opposing a motion to dismiss the complaint, unlike defendants supporting the motion, may supplement their pleading with admissible evidence. Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 (2007); Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366 & n., 670 N.Y.S.2d 973, 694 N.E.2d 56 (1998);Ray v. Ray, 108 A.D.3d 449, 451–52, 970 N.Y.S.2d 9 (1st Dep't 2103); Thomas v. Thomas, 70 A.D.3d 588, 591, 896 N.Y.S.2d 30 (1st Dep't 2010). While plaintiffs only belatedly supplemented their complaint with three affidavits, from a current and a former employee of Bob's Discount Furniture and from a superintendent of a neighboring building, defendants were provided an opportunity to reply further, did so, and did not request more time.

Bob's Discount Furniture objects particularly to its current employee's affidavit on the ground that plaintiffs' attorney obtained it in violation of Rule 4.2 of the Rules of Professional Conduct. 22 N.Y.C.R.R. pt. 1200. The employee, however, is neither a defendant, nor a defendant's principal with a stake in the corporate entity, nor a defendant's managerial employee with the authority to bind a defendant or the responsibility to carry out the advice of a defendant's attorney. As the employee makes clear in his affidavit, he was and is part of the Bob's Discount Furniture “sales staff” and not part of the “management team.” Aff. of Nelson Ramirez, Jr. (Oct. 7, 2012). Therefore no rule restricted plaintiffs' attorney in obtaining sworn statements from this employee. Muriel Siebert & Co., Inc. v. Intuit Inc., 8 N.Y.3d 506, 511, 836 N.Y.S.2d 527, 868 N.E.2d 208 (2007); Niesig v. Team I, 76 N.Y.2d 363, 374, 559 N.Y.S.2d 493, 558 N.E.2d 1030 (1990). See Arons v. Jutkowitz, 9 N.Y.3d 393, 407, 850 N.Y.S.2d 345, 880 N.E.2d 831 (2007); Flores v. Willard J. Price Assoc., LLC, 20 A.D.3d 343, 344, 799 N.Y.S.2d 43 (1st Dep't 2005).

Plaintiffs' affidavits opposing the motion by Bob's Discount Furniture attest that, for approximately two years leading up to plaintiffs' injury, the store had been attracting unsupervised minors inside with free beverages, candy, and cookies, where the minors often became disruptive. After the store expelled the minors from inside the store, its employees had observed these minors throwing candy and other objects off the fourth level walkway. Security personnel for the shopping center had complained about this misbehavior to store employees, who had reported these complaints to the store management.

The store's video recording as authenticated by its witness, on which plaintiffs may rely, corroborates that, on the day of plaintiffs' injury, the store and the boys involved acted consistently with this pattern. The store was offering free beverages and food and attracted the boys inside. They became disruptive, so the store expelled them into the mall, but never notified security personnel or anyone else that the boys posed a risk.

Thus, according to the complaint, Bob's Discount Furniture was aware of a situation that frequently posed a risk to the shopping center's other tenants and customers, whether customers of Bob's Discount Furniture or of other tenants, and other persons in the center. At minimum, the complaint raises a question whether it was reasonably foreseeable to Bob's Discount Furniture that expelling the troublesome boys from the store to cause disruption outside the store, without any further action to address their misbehavior, would result in injury to persons or property outside.

B. Legal Duty

A business proprietor in possession and control of premises owes a duty to control persons on the business' premises when the business is aware of the need for such control and is in a position to take precautionary measures to protect members of the public from the misconduct...