Mrijaj v. Genting N.Y. LLC

• Docket Number: Index No. 34065/2019E
• Decision Date: 14 December 2023
• Citation: 2023 NY Slip Op 23407
• Parties: Pren Mrijaj on behalf of himself and all others similarly situated, Plaintiff, v. Genting New York LLC, D/B/A RESORTS WORLD CASINO NEW YORK CITY, Defendant.
• Court: New York Supreme Court

2023 NY Slip Op 23407

Pren Mrijaj on behalf of himself and all others similarly situated, Plaintiff, v. Genting New York LLC, D/B/A RESORTS WORLD CASINO NEW YORK CITY, Defendant.

Index No. 34065/2019E

Supreme Court, Bronx County

December 14, 2023

Plaintiff Pren Mrijaj Andrew St. Laurent, Esq. Harris St Laurent & Wechsler LLP David B. Rankin, Esq. Beldock Levine & Hoffman LLP

Defendant Genting New York City LLC d/b/a Resorts World Casino New York City Benjamin Greenfield, Esq. Wilson, Elser Moskowitz, Edelman & Dicker LLP Joshua Cash, Esq. Wilson, Elser, Moskowitz, Edelman & Dicker LLP

Veronica G. Hummel, J.

In accordance with CPLR 2219(a), the decision herein is made upon consideration of all of the papers filed by the parties in NYSCEF in support of and in opposition to the motion of plaintiff PREN MRIJAJ (" Plaintiff ") (Mot. Seq. 2) seeking an order, pursuant to CPLR 901 and 902, certifying a class action, and the cross-motion of defendant GENTING NEW YORK LLC. D/B/A RESORTS WORLD CASINO NEW YORK CITY (" Defendant ") seeking an order, pursuant to CPLR 3211(a)(7), dismissing the complaint and proposed class action as against Plaintiff as the complaint individually and on behalf of the proposed class is deficient and fails to state a viable legal claim. Of note, as part of oral argument held on May 31, 2023, the parties were granted time to submit additional papers, which the parties declined to do, and Motion Sequence 3 was withdrawn.

Background

The Memorandum of Understanding

The State of New York owns the raceway located at 110-00 Rockaway Boulevard, Queens County (the" Aqueduct Racetrack" or the" Premises ").

Defendant is licensed to manage the video casino (the" Video Casino ") at the Aqueduct Racetrack pursuant to a Memorandum of Understanding (the" MOU "), dated September 13, 2010, between Defendant and the State of New York. In the MOU, Defendant agreed to act as the State of New York's video lottery gaming agent (" VLG Agent "). Notably, Article 1, paragraph 1.1 of the MOU provides that the Video Casino "shall be developed and operated in accordance with this MOU, the Division of the Lottery's regulations, bulletins and instructions and all applicable laws." Furthermore, paragraph 1.2 of the MOU provides that the State of New York retains ownership of all property and improvements. Under the MOU, Defendant must operate the Video Casino in accordance with the applicable laws and the Division of the Lottery's regulations. MOU ¶¶ 2.1, 11.1.

Paragraphs 13.2 and 13.2.1 of the MOU further provide, in relevant part, that Defendant must comply with all application provisions of legislation, including, without limitation, the Racing Law, the Pari-Mutuel Wagering and Breeding Law, and the Tax Law. As part of that obligation, the MOU provides that the Video Casino "shall be subject to any and all rules and regulations promulgated by the Division of the Lottery pursuant to Section 1617-a of the Tax Law." MOU ¶ 13.2.1.

In the event of Defendant's material default on these obligation, the State of New York may deem the MOU terminated. MOU ¶ 14.1.

The New York State Gaming Commission (the" Gaming Commission ") is the state agency that manages the Video Casino's lease. Its predecessor state agency was the Division of Lottery. Importantly, the State of New York and the Gaming Commission are not parties to this action, which is not an Article 78 proceeding.

The Motion to Dismiss

The complaint was filed on November 26, 2019. In relevant part, Plaintiff alleges the following facts.

Plaintiff was first detained by Video Casino staff on January 19, 2018 (the" First Detention "). On that date, Plaintiff was playing roulette at the Video Casino when casino personnel, including security guards, approached him and demanded that he leave the floor with them. These individuals escorted Plaintiff to the Video Casino's basement and locked him in a room, where he was informed that he had broken a screen on one of the casino machines. Plaintiff admitted to tapping the side of one of the machines in frustration but denied breaking either a screen or any other part of the machine.

Plaintiff asked to see the video surveillance of him allegedly breaking one of the machines. This request was refused. Instead, Plaintiff was shown a surveillance picture of him walking through the Video Casino and a picture of a broken screen.

Plaintiff was held in the locked room, with a security guard, for at least two hours. He was told that he could either pay for the damage that he had allegedly caused or the police would be called. Plaintiff refused to pay what was demanded, so the Video Casino staff called the police. When they arrived, the police were allegedly shown a video of Plaintiff striking a machine. Plaintiff was then arrested and charged.

Plaintiff spent the day in police custody. He retained counsel and received an adjournment in contemplation of dismissal. After a six-month period of adjournment, the criminal case against Plaintiff was dismissed.

Plaintiff was again detained by Video Casino staff on August 9, 2019 (the" Second Detention "). On that date, Plaintiff returned to the Video Casino for the first time in over a year. Plaintiff called the Video Casino beforehand and was told that he was cleared to enter the facility. Plaintiff cashed in a voucher for $5,000. Shortly thereafter, two security officers approached Plaintiff and told him he needed to go with them. Throughout the time he was in Defendant's custody, Plaintiff was told by Defendant's agents that Defendant had the right to hold him until the payment of the amount demanded was made.

The security officers took Plaintiff into the same basement room and at least one security officer stayed in the room with Plaintiff the entire time. Plaintiff was locked in this room for more than an hour, when a supervisor came in and told him that, if he refused to pay for the screen he had allegedly broken in 2018, they would call the police. The battery on Plaintiff's cell phone was dead, so he asked to use a telephone to call his lawyer. This request was refused. While in Defendant's custody, Plaintiff paid $1,619.81 in what Defendant labeled "restitution." Upon payment, Plaintiff was released.

Plaintiff alleges that since the Video Casino opened in 2011, more than 500 individuals have been arrested on criminal mischief charges following accusations by the casino that they damaged the casino's machines. Even when the allegations are denied and the Video Casino offers no proof that a patron has done any damage, casino personnel detain patrons and offer them the "choice" of either paying "restitution"-in amounts ranging from $500 to over $1,500-or having casino personnel call the police. Plaintiff alleges that this effort to recover civil penalties from individuals accused of having caused damage to machines in the Video Casino constitutes, among other things, false imprisonment and larceny by extortion. Even where Defendant's employees properly suspect an individual of damaging casino property, Plaintiff alleges, Defendant is engaged in improper, and tortious, self-help.

The Motion Papers

In support of the motion and in opposition to the cross-motion Plaintiff submits a personal affidavit, an attorney's affirmation, a proposed order, a notice of class action, a 2018 Seizure Report, a 2019 Seizure Report, and a memorandum of law. The 2018 Seizure Report details the First Detention, while the 2019 Seizure Report addresses the Second Detention and reflects Plaintiff's payment of $1619.81 in damages. In addition, in opposition to Defendant's cross-motion, Plaintiff submits a memorandum of law.

The facts set forth in Plaintiff's personal affidavit mirror the facts alleged in the complaint.

In support of the cross-motion and on reply, Defendant submits an attorney affirmation, a statement of material facts, a memorandum of law, and copies of the pleadings and discovery responses. Defendant also submits copies of Damage Reports-Accidental (findings of accidental damage on 10/2020, 09/2020 (2 incidents)), 2/2020, 5/2019, 3/2019, 4/2028, 1/2017, 8/2017, and 12/2016), and Damage Reports-Inconclusive (findings of cause of damage is inconclusive on 9/2017, 3/2019, 10,2017 (2 incidents)), July 2017 (2 incidents), June 2017, 1/2017, 12/2016 (2 incidents), 11/2016, 11/2017, 12/2017, 10/2020 (2 incidents, 11/2021, and 1/2018). In addition, Defendant provides a surveillance report of Plaintiff's First Detention, a copy of a deed, and a copy of the MOU.

Further, Defendant submits the Video Casino's reports on the First and Second Detentions and a "notice of trespass" based on the First Detention. The notice of trespass states that Plaintiff was excluded "until restitution is made." The report on the First Detention states that Plaintiff was "given a copy of a lifetime exclusion until restitution is paid."

Defendant also submits a copy of a "Bulletin No.22," which was issued to casino operators by the governing state agency, the Gaming Commission. Bulletin #22 specifically provides, in relevant part:

If... gaming equipment is damaged by a patron, then facility staff shall follow the procedures set forth below after first determining if the damage was caused recklessly or if the damage was accidental....

Following notification of damage and confirmation of the identity of the patron, the patron will be approached by Security... and brought to the Security area. Written reports are to be created... documenting the incident with surveillance footage retained for at least one year.... The determination of reckless versus accidental damage should be based upon surveillance coverage and statements from both staff and patrons.

....

As agents of the NYS Gaming Commission, gaming...