Mitchell v. Bowlmor Lanes LLC

• Court: New York Supreme Court
• Writing for the Court: Francis A. Kahn, III Judge
• Citation: Mitchell v. Bowlmor Lanes LLC, 2022 NY Slip Op 30885(U), 595850/2017, Index 152011/2017 (N.Y. Sup. Ct. Mar 14, 2022)
• Decision Date: 14 March 2022
• Docket Number: 595850/2017,Index 152011/2017
• Parties: NY'ANNE MITCHELL, Plaintiff, v. BOWLMOR LANES LLC, JOHN DOE, NESCTC SECURITY AGENCY, LLC, and SJ SOLUTIONS SECURITY & PROTECTION SERVICES INC., Defendants. BOWLMOR LANES LLC Third-Party Plaintiff, v. NESCTC SECURITY AGENCY, LLC Third-Party Defendant. Motion Seq. Nos. 009, 010, 011

2022 NY Slip Op 30885(U)

NY'ANNE MITCHELL, Plaintiff, v. BOWLMOR LANES LLC, JOHN DOE, NESCTC SECURITY AGENCY, LLC, and SJ SOLUTIONS SECURITY & PROTECTION SERVICES INC., Defendants.

BOWLMOR LANES LLC Third-Party Plaintiff, v. NESCTC SECURITY AGENCY, LLC Third-Party Defendant.

Motion Seq. Nos. 009, 010, 011

Index Nos. 152011/2017, 595850/2017

Supreme Court, New York County

March 14, 2022

Unpublished Opinion

PRESENT: HON. FRANCIS KAHN, III Acting Justice

DECISION + ORDER ON MOTION

Francis A. Kahn, III Judge

The following e-filed documents, listed by NYSCEF document number (Motion 009) 210-240, 247, 248, 250, 254, 256, 265, 270 272-281, 298, 299, 302, 303, 306, 308, 310-312, 319-341 357-371, 398-400; (Motion 010) 241-246, 249, 253, 255, 257, 266, 282-291, 296, 297, 307, 309, 313-315, 372-397; (Motion 011)292-294, 300, 301, 304, 316-318, 342-356 were read on these motions/cross-motions for SUMMARY JUDGMENT.

Upon the foregoing documents, the motions and cross-motions are decided as follows:

This action arises out of an incident that occurred early in the morning of July 16, 2016 at Bowlmor Lanes at Chelsea Piers, located at Pier 60, on the west side of Manhattan. At the time, the establishment was owned and operated by Bowlmor Lanes LLC ("Bowlmor"). Plaintiff claims that while at this location with:; members of her family, two fights broke out at closing time during which Plaintiff was hit in the head by an unknown attacker identified as "John Doe." As a result, New York City Police were called to quell the brawl. Bowlmor previously contracted with Defendant NESCTC Security Agency, LLC ("NESCTC") to provide security at the bowling alley. NESCTC engaged Defendant SJ Solutions Security & Protection Services Inc. ("SJ"), via a subcontract, to provide the actual security and personnel at the premises.

Plaintiff initially commencing this action against only Bowlmor and John Doe. Bowlmor commenced a third-party action against NESCTC for common-law contribution and indemnification, contractual indemnification, and breach of contract for failure to procure insurance. NESCTC answered the third-party complaint. Thereafter, Plaintiff amended her complaint to include NESCTC as a direct Defendant. Plaintiff again amended her complaint to add SJ as a Defendant.

In her second amended complaint, Plaintiff pleads Defendants owned, operated, managed, maintained and controlled the subject premises and were negligent in failing to keep the premises in a reasonably safe condition. Plaintiff also claims that Defendants negligently failed to provide proper security on the premises and negligently employed, trained, supervised their employees. Defendants Bowlmor, SJ and NESCTC answered the amended complaint and asserted crossclaims against each other for contribution, common-law indemnification and contractual indemnification.

Early in this action, Plaintiffs counsel requested Bowlmor preserve any surveillance footage of the subject incident. During discovery, it was revealed that Bowlmor's security system recorded the subject; incident. Despite Plaintiffs request, and with knowledge from the date of the incident of Plaintiff s alleged' injury and the NYPD response, Bowlmor failed to preserve its surveillance footage. Plaintiff and SJ moved pursuant to CPLR §3126 for spoliation sanctions against Bowlmor for the loss of the surveillance footage. This Court granted the motions to the extent of ordering that an adverse inference charge be given against Bowlmor at the time of trial.

Now, Defendant Bowlmor (Motion Seq No 9) moves for summary judgment dismissing Plaintiffs > complaint and all crossclaims. Defendants SJ and NESCTC cross-move for summary judgment dismissing Plaintiffs complaint and all crossclaims. Defendant NESCTC moves separately (Motion Seq No 10) for summary judgment on its crossclaim against SJ for contractual indemnification and its duty to defend NESCTC as well as to dismiss Bowlmor's crossclaim for contractual indemnification. Defendant SJ also moves separately (Motion Seq No 11) for summary judgment dismissing Plaintiffs complaint and all crossclaims.

Plaintiffs Deposition Testimony

Plaintiff testified at her deposition that upon arriving at the bowling alley she and the other members of her group encountered a man in a black polo shirt that she presumed was a Bowlmor employee who she learned later was a security guard. Plaintiff testified her cousin Madway Greer, Jr. ("Madway") paid a cashier at Bowlmor for three games of bowling for the group on his credit card. Between thirty-minutes and one-hour after arriving at the bowling alley, the group was in the fourth frame of its first game when a security guard informed the group Bowlmor was closing. Plaintiff averred that as Madway was attempting to get money back from the cashier, a security guard in a black polo shirt told Plaintiff and her family in an aggressive manner and with profanity, that Bowlmor was closing. Plaintiff testified that when Madway confronted the security guard and told him not to speak to his family in that manner, the security guard struck Madway in the face whereupon the two engaged in a brawl. Soon thereafter, approximately five Bowlmor employees entered the area, all wearing red shirts, not including those that remained behind the counter. Plaintiff testified that a second; security guard attempted to exclude the other patrons from the fight. Plaintiff s cousins Sheunita Greer ("Sheunita") and Kevin Cleveland, Jr. ("Kevin") attempted aid Madway by striking the security guard he was fighting. The second security guard then engaged Kevin and they struck one another. At least one other patron joined that fight. When all of the patrons started to run out, Plaintiff was struck on the right cheek and knocked out by a still unknown assailant.

Alejandro Lopez's Deposition (Bowlmor)

Alejandro Lopez ("Lopez"), a current Bowlmor employee testified that he worked as a front desk attendant for Bowlmor on the night of the incident. He averred that when Plaintiff and her family arrived, eight persons in total, he was at the front desk with another Bowlmor employee, Jose Hernandez-Lujan ("Hernandez-Lujan"). According to Lopez, Hernandez-Lujan advised Plaintiffs group to order only a single game because of the late hour, but that they insisted on two games. He advised Plaintiffs group that Bowlmor had a no- refund policy for pre-paid games. The group became "a little upset" and Lopez claims Plaintiff stated he was being homophobic because she was a lesbian. Lopez sold the party the two games and placed them on two lanes, rather than the usual one, to speed the play. At some point after, screens located on each lane scrolled a message to all patrons notifying them that they had ten minutes or five minutes left before closing. Lopez believed that the group had completed one game before the lanes were shut off. Lopez stated that a tall, well-built man with Plaintiffs group went to the front desk after the scrolling message appeared and told Hernandez-Lujan, "[y]ou are going to not turn off these lanes when it is time. I am going to finish out my game." Lopez |] indicated that Hernandez-Lujan was apologetic but stated the lanes had to be shutdown. Hernandez-Lujan offered the patron an arcade card or bowling coupons to compensate for the lost game, but he refused the offer. Lopez claimed that Plaintiffs entire group became "a little more rowdy" as a result. Lopez then went and stood next to Hernandez-Lujan and called Operation Manager Shonee Strother ("Strother") via "walkie", but there was no response. Lopez testified there were four security guards on duty that evening. However, at the time of this incident, only one security guard remained.

Lopez recounted that as the tall, well-built man from Plaintiffs group became more agitated, the security guard approached the counter. Then, according to Lopez, the group began heckling Lopez and Hernandez-Lujan using homophobic slurs. Then the tall, well-built man walked behind the counter towards Lopez and Hernandez-Lujan. As a result, Lopez screamed into the "walkie" that he needed a manager. The security guard then jumped in front of the patron separating him from Lopez and Hernandez-Lujan. Lopez testified that the tall, well-built man punched the security guard and the rest of Plaintiff s group started throwing drinks over the counter. When Strother came to the front, two people from Plaintiffs group pushed him and j held him back from the brawl behind the counter. Lopez, Hernandez-Lujan and a female server in the area all retreated to the general manager's office and locked themselves in. Lopez could not recall if Strother became physically involved in the brawl. Lopez testified that on the night of the incident, front desk workers, including himself and Hernandez-Lujan, were wearing white shirts, that Bowlmor bartenders, porters, laser tag attendants and waitresses all wore black. When asked about Bowlmor's Operating Standards, Rule 13 that required the security guard to leave with the last Bowlmor employee on premises, Lopez noted there was no security on site when he and the other employees emerged from the manager's office.

Jose Hernandez-Lujan's Deposition Testimony (Non-Party)

Hernandez-Lujan presently employed by Bowlero Corp., the parent company of Bowlmor, testified that on the night in question he worked as a front desk associate at Bowlmor Chelsea Piers and his shift was from Friday at 5:00 p.m. to 3:00 a.m. on Saturday. He worked the front counter with Lopez and stated that Strother j was his direct supervisor that evening. Hernandez-Lujan indicated that three security guards, all dressed in black, were on duty that evening. Hernandez-Lujan stated that Bowlmor's general manager was responsible for...