Lorenzo v. Great Performances/Artists as Waitresses, Inc
| Decision Date | 16 March 2020 |
| Docket Number | Index No. 161170/2013 |
| Parties | HECTOR LORENZO, Plaintiff v. GREAT PERFORMANCES/ARTISTS AS WAITRESSES, INC., DELAWARE NORTH COMPANIES, INCORPORATED, GREAT EXPECTATIONS CATERING LLC, CPS 5 LLC, CPS 1 REALTY LP, PLAZA ACCESSORY OWNER LP, FHR (NYC) LLC, FAIRMONT HOTELS & RESORTS (US) INC. d/b/a FAIRMONT RAFFLES HOLDINGS INTERNATIONAL, HAMPSHIRE HOTELS MANAGEMENT, LLC, EL AD US HOLDING, INC. d/b/a EL-AD GROUP, ELAD PROPERTIES, LLC, EL-AD PROPERTIES NY LLC, SAHARA PLAZA LLC, SAHARA PLAZA II INC., SAHARA HAMPSHIRE HOTEL MANAGEMENT CO. II INC., SAHARA HAMPSHIRE HOTEL MANAGEMENT LLC, and KINGDOM HOLDING COMPANY, Defendants GREAT EXPECTATIONS CATERING, LLC, and CPS 5, LLC, Third Party Plaintiffs v. JOHN YAHARA, NICOLE YAHARA THOBANI, and ALY THOBANI, Third Party Defendants DELAWARE NORTH COMPANIES, INCORPORATED, Second Third Party Plaintiff v. JOHN YAHARA, NICOLE YAHARA THOBANI, and ALY THOBANI, Second Third Party Defendants FHR (NYC) LLC, FAIRMONT HOTELS & RESORTS (U.S.) INC. d/b/a FAIRMONT RAFFLES HOLDINGS INTERNATIONAL, and FRHI HOTELS & RESORTS (U.S.) INC. d/b/a FAIRMONT RAFFLES HOLDINGS INTERNATIONAL, Third Third Party Plaintiffs v. JOHN YAHARA, NICOLE YAHARA THOBANI, and ALY THOBANI, Third Third Party Defendants |
| Court | New York Supreme Court |
DECISION AND ORDER
I. BACKGROUND
Plaintiff seeks damages for severe head trauma when he was punched in the face while attending a wedding at the Plaza Hotel in New York County. Plaintiff, a wedding guest, alleges that third party defendant John Yahara, another wedding guest, committed the assault and battery, but does not sue Yahara. Instead, plaintiff broadly claims that the negligence of all defendants that carried out the wedding celebration, in failingto train their staff and to supervise, manage, operate, and adequately control the Plaza Hotel premises, caused the assault and battery. More specifically, he claims that defendants served alcohol to intoxicated wedding guests, failed to exercise adequate control over wedding guests, and failed to remove intoxicated wedding guests from the premises, amounting to a violation of the Dram Shop Act, N.Y. Gen. Oblig. Law § 11-101, as well as negligence.
Defendant-second third party plaintiff Delaware North Companies, Incorporated, a provider of food and hospitality services, includes among its subsidiaries defendant Great Expectations Catering LLC, which manages, supervises, and owns 50% of defendant CPS 5 LLC. CPS 5 in turn carries out the catering operations, including booking events and serving food and drinks at event venues. Delaware North Companies moves for summary judgment dismissing the complaint and cross-claims against Delaware North Companies, contending that neither these connections nor any other evidence indicates that Delaware North Companies contributed to Yahara's intoxication and eventual assault and battery of plaintiff. C.P.L.R. § 3212(b). Plaintiff cross-moves to file a Supplemental Summons and Second Amended Complaint to add claims against Delaware North Companies SportService, Inc., and DNC New York Catering, Inc., twoadditional subsidiaries of Delaware North Companies. C.P.L.R. §§ 1002(b), 3025(b).
II. DELAWARE NORTH COMPANIES' MOTION FOR SUMMARY JUDGMENT
To obtain summary judgment, Delaware North Companies must make a prima facie showing of entitlement to judgment as a matter of law through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Friends of Thayer Lake LLC v. Brown, 27 N.Y.3d 1039, 1043 (2016); Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 49 (2015); Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 734 (2014); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012). If Delaware North Companies satisfies this standard, the burden shifts to plaintiff and co-defendants to rebut that prima facie showing by producing evidence, in admissible form, sufficient to require a trial of material factual issues. De Lourdes Torres v. Jones, 26 N.Y.3d 742, 763 (2016); Nomura Asset Capital Corp. v. Cadwalader Wickersham & Taft LLP, 26 N.Y.3d at 49; Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008); Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004).
In evaluating the evidence for purposes of Delaware North Companies' motion, the court construes the evidence in the light most favorable to plaintiff and co-defendants. Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 448 (2016); De LourdesTorres v. Jones, 26 N.Y.3d at 763; William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 475 (2013); Vega v. Restani Constr. Corp., 18 N.Y.3d at 503. If Delaware North Companies fails to meet its initial burden, the court must deny summary judgment despite any insufficiency in the opposition. Voss v. Netherlands Ins. Co., 22 N.Y.3d at 734; Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005).
The Dram Shop Act, N.Y. Gen. Oblig. Law § 11-101(1), provides that:
Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.
To be free from liability under this statute, Delaware North Companies must establish either that it was uninvolved in serving alcohol to Yahara when he was visibly intoxicated or that there was no reasonable or practical connection between its actions or omissions and the assault and battery of plaintiff. Kaufman v. Quickway, Inc., 14 N.Y.3d 907, 909 (2010); Ricaurte v. Inwood Beer Garden & Bistro Inc., 165 A.D.3d 586, 586 (1st Dep't 2018);Carver v. P.J. Carney's, 103 A.D.3d 447, 448 (1st Dep't 2013); Coffey v. Esparra, 88 A.D.3d 621, 621-22 (1st Dep't 2011).
Delaware North Companies claims that it was uninvolved in serving alcohol to Yahara because it was wholly uninvolved in the service of alcohol at the Plaza Hotel. Delaware North Companies relies on the depositions of Vincent Palumbo, a manager of defendant CPS 5, and Nicholas Liberto, Vice President of Finance for proposed defendant Delaware North Companies Sportservice.
Palumbo testified that defendants Great Expectations Catering and Great Performances were the entities responsible for all alcohol service operations, Aff. of Marylou K. Roshia Ex. E, at 93-95; that Great Performances trained bartenders and wait staff to identify intoxication, id. at 86; and that CPS 5 developed the alcohol service policy and held the liquor licenses for service of alcohol at the Plaza Hotel. Id. at 89-90, Exs. 3-4. He further testified that CPS 5 independently operated the day-to-day business of catering, bartending, and providing champagne and wine to wedding guests and that Delaware North Companies was responsible only for accounting and financial reporting. Id. at 352-54.
Liberto, whom Delaware North Companies produced as its witness, similarly testified that Delaware North Companies neither served alcohol nor bore responsibility for personnel providing these services at the Plaza Hotel. Roshia Aff. Ex. F,at 129. While acknowledging that Delaware North Companies maintained express internal alcohol service policies and the capability to provide training on identifying intoxicated individuals, Liberto testified that Delaware North Companies implemented those policies and training at premises other than the Plaza Hotel and under other operating agreements. Id. at 128-29. Liberto corroborated Palumbo's testimony that Great Expectations Catering was responsible for hiring and training the employees who served food and drinks at events at the Plaza Hotel. Id. at 33-36.
These witnesses' combined testimony establishes that Delaware North Companies was not responsible for serving alcohol at events at the Plaza Hotel, satisfying Delaware North Companies' initial burden to establish that Delaware North Companies did not serve alcohol to a visibly intoxicated person there. Coffey v. Esparra, 88 A.D.3d at 621; Zamore v. Bar None Holding Co., LLC, 73 A.D.3d 601, 602 (1st Dep't 2010); Murphy v. Chaos, 26 A.D.3d 231, 231 (1st Dep't 2004); McGlynn v. St. Andrew Apostle Church, 304 A.D.2d 372, 373 (1st Dep't 2003). See Cohen v. Bread & Butter Entertainment LLC, 73 A.D.3d 600, 600 (1st Dep't 2010); McGovern v. 4299 Katonah Inc., 5 A.D.3d 239, 240 (1st Dep't 2004). Plaintiff offers no evidence that Delaware North Companies served alcohol to Yahara while he was visiblyintoxicated, but claims that the evidence Delaware North Companies relies on to establish its defense is inadmissible.
While Delaware North Companies' Exhibit G, the Operating Agreement among CPS 5, Great Expectations Catering, and proposed defendant DNC New York Catering, and Exhibit H, the lease between the landlord Plaza Accessory Owner LP and CPS 5, are unauthenticated, these contracts are unnecessary to its defense established by the two witnesses' testimony. While plaintiff also points out that Liberto's deposition transcript is unsigned, his failure to sign the certified transcript does not render it inadmissible, particularly when plaintiff does not question its authenticity. C.P.L.R. § 3116(a); Singh v. New York City Hous. Auth., 177 A.D.3d 475, 475 (1st Dep't 2019). Once plaintiff, as he acknowledges, forwarded Liberto's certified deposition transcript to Liberto for his signature, either plaintiff or the party for which Liberto appeared, Delaware...
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