McGee v. JLPC Corp.

• Decision Date: 11 July 2012
• Citation: 2012 N.Y. Slip Op. 05503,948 N.Y.S.2d 368,97 A.D.3d 644
• Parties: Heather L. McGEE, appellant, v. JLPC CORP., defendant, Shaun Kenney, respondent.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 644

948 N.Y.S.2d 368

2012 N.Y. Slip Op. 05503

Heather L. McGEE, appellant,

v. JLPC CORP., defendant,Shaun Kenney, respondent.

Supreme Court, Appellate Division, Second Department, New York.

July 11, 2012.

Kujawski & Kujawski, Deer Park, N.Y. (Mark C. Kujawski of counsel), for appellant.

Gathman & Bennett, LLP, Huntington, N.Y. (John C. Bennett of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), entered September 23, 2011, as granted that branch of the motion of the defendant Shaun Kenney which was for summary judgment dismissing the fourth cause of action, which alleged common-law negligence, insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On December 9, 2006, at approximately 3:00 A.M., the plaintiff, while a patron at the Handlebar Restaurant (hereinafter the Handlebar) in Mt. Sinai, observed the defendant Shaun Kenney at the bar. The plaintiff, who also worked as a waitress at the Handlebar, was familiar with Kenney since he was a regular patron. She tapped Kenney on the back of his head to get his attention. At the time, he was speaking to someone else, so he finished what he was saying and then turned around. As Kenney turned, his right elbow came into contact with the plaintiff's arm, which was holding a glass to her lips to take a sip. As a result of the contact between Kenney's elbow and the plaintiff's arm, the plaintiff allegedly was injured.

The plaintiff commenced this action against JLPC Corp., the corporate owner of the Handlebar, and Kenney to recover damages for her personal injuries. The plaintiff alleged in her third cause of action that Kenney intentionally assaulted her and in her fourth cause of action that his negligence caused her injuries.

After discovery was complete, Kenney moved for summary judgment dismissing the third and fourth causes of action insofar as asserted against him. The Supreme Court granted his motion. The plaintiff appeals only from so much of the order as awarded summary judgment dismissing the fourth cause of action insofar as asserted against Kenney. We affirm the order insofar as appealed from.

Kenney established, prima facie, that he did not breach any duty of care owed to the...