Ramsey v. Cec Entm't, Inc.
| Citation | 950 N.Y.S.2d 725 |
| Decision Date | 27 March 2012 |
| Docket Number | No. 24608/05.,24608/05. |
| Parties | Lindon RAMSEY and Beatrice D. Ramsey, Plaintiffs, v. CEC ENTERTAINMENT, INC. d/b/a Chuck E. Cheese and IBSC Agency, Inc ., Defendants. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Alan C. Glassman, Esq., Lynbrook, Attorney for Plaintiff.
David S. Rutherford, Esq., Rutherford & Christie, LLP, New York, Attorney for CEC Defendant.
By notice of motion filed on September 9, 2011, under motion sequence ten, defendant CEC Entertainment, Inc., doing business as Chuck E. Cheese (hereafter “CEC”) has moved pursuant to CPLR 3212 for summary judgment dismissing the complaint on the basis that Lindon Ramsey's injuries were unforeseeable and that he assumed the risk of his injury. Plaintiffs have opposed the motion.
On August 10, 2005, plaintiffs commenced this action by filing a summons and verified complaint. According to the amended complaint and the plaintiffs' deposition testimony, the instant action is for damages for personal injuries sustained by Lindon Ramsey on June 18, 2005, at a Chuck E. Cheese restaurant located on the third floor of the Atlantic Terminal Mall at 139 Flatbush Avenue, Brooklyn, New York (hereafter “the subject premise”). On that date Lindon Ramsey brought his wife, Beatrice D. Ramsey, and their two children as guests of Ali Parchment, who was hosting a party for his own child at the subject premise. While at the subject premise Lindon Ramsey and Ali Parchment were stabbed by a patron who had been consuming alcohol with six other men. The complaint alleges that CEC is the owner and negligently failed to keep the subject premise safe thereby causing Lindon Ramsey's injuries and his wife's derivative injuries.
CEC interposed an answer dated September 29, 2005. On October 16, 2006, plaintiffs filed an amended summons and complaint. In the first week of November 2006, plaintiffs filed two affidavits of the service of the amended summons and complaint upon each of the defendants. On December 18, 2006, IBSC Agency, Inc., filed its verified answer to the amended complaint. It is unclear whether CEC interposed an answer to the amended complaint.
CEC's motion consists of an affirmation of counsel with fourteen annexed exhibits labeled A through N, and a memorandum of law. Exhibit A is a copy of plaintiffs' summons and verified complaint dated August 9, 2005. Exhibit B is a copy of CEC's answer to the summons and complaint dated September 29, 2005. Exhibit C is a stipulation of discontinuance of the action against defendant IBSC. Exhibit D is a copy of the summons and complaint of plaintiff Ali Parchment against CEC and Forest City Ratner Companies (hereafter “FCR”) which commenced the related action bearing index number 34072/2006 (hereafter “the related action”). Exhibit E is CEC's answer to Ali Parchment's complaint in the related action. Exhibit F is FCR's answer to Ali Parchment's complaint in the related action. Exhibit G is the third-party summons and complaint of FCR against CEC dated June 15, 2011. Exhibit H is CEC's answer to the third-party summons and complaint of FCR. Exhibit I is an order of this court consolidating the instant action with the related action. Exhibit J is a copy of the deposition transcript of plaintiff Lindon Ramsey. Exhibit K is a copy of the deposition transcript of plaintiff Beatrice Ramsey. Exhibit L is the plaintiffs' note of issue dated January 24, 2011. Exhibit M is a copy of the transcript of the hearing before this court on June 10, 2011, where CEC made an application to strike plaintiffs' note of issue. Exhibit N is a copy of this court's order dated June 10, 2011, which extended CEC's time to move for summary judgment to September 9, 2011.
Plaintiffs' opposition papers consist of their attorney's affirmation and seven exhibits labeled A through G. Exhibit A is Lindon Ramsey's affidavit. Exhibit B is Beatrice Ramsey's affidavit. Exhibit C is a copy of the deposition transcript of CEC, by the manager of the subject business location, Richard Bergeron. Exhibit D is a copy of a CEC accident report. Exhibit E is a copy of a document purporting to be CEC's “Responsible Alcohol Service” policy. Exhibit F is a copy of a document purporting to be CEC's “Safety Program.” Exhibit G is a copy of a document purporting to be CEC's “Security Program.”
CEC replied to plaintiffs' opposition papers with an attorney's affirmation.
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986] ). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v. Citibank, 100 N.Y.2d 72 [2003] ). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers ( Ayotte v. Gervasio, 81 N.Y.2d 923 [1993] ). If a prima facie showing has been made, the burden shifts to opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, 68 N.Y.2d at 324).
A motion made pursuant to CPLR 3212 would require the annexing of pleadings under section 3212(b). “The pleadings” means “a complete set of the pleadings” (Wider v. Heller, 24 AD3d 433 [2d 2006] ) or “all the pleadings” (Welton v. Drobniki, 298 A.D.2d 757 [3d 2002] ).
The requirement that a motion for summary judgment be supported by the pleadings is mandatory. In fact, the failure to include the pleadings would render the motion procedurally defective (Matsyuk v. Konkalipos, 35 AD3d 675 [2d 2006]; Wider v. Heller, 24 AD3d 433 [2d 2006] ).
An amended pleading, once served, supersedes the initial pleading and becomes the only pleading in the case as though the initial pleading was never served ( see Elegante Leasing, Ltd. v. Cross Trans Svc, Inc., 11 AD3d 650 [2d 2004]; see also, Titus v. Titus, 275 A.D.2d 409 [2d 2000] ).
The court may take judicial notice of its own records ( see Wachovia Bank, N.A. v. Otto N. Williams, 17 Misc.3d 1127[A] [NY Sup.2007] citing Matter of Khatibi v. Weill, 8 AD3d 485 [2d 2004] ). In so doing, the court takes judicial notice of the following four documents filed with the Kings County Clerk's Office. On October 16, 2006, plaintiffs filed an amended summons and complaint. On November 2, 2006, plaintiffs filed an affidavit of service of the amended summons and complaint on defendant CEC. On November 6, 2006, plaintiffs filed an affidavit of service of the amended summons and complaint on defendant IBSC Agency, Inc. On December 18, 2006, defendant IBSC Agency, Inc., filed its verified answer to the amended complaint.
Defendant CEC did not annex the amended complaint to its motion. The failure to include the amended pleadings render the instant motion procedurally defective (Matsyuk v. Konkalipos, 35 AD3d 675 [2d 2006]; Wider v. Heller, 24 AD3d 433 [2d 2006] ).
Although plaintiffs did not raise this deficiency in opposition to the motion, the requirement of a complete set of pleadings is mandatory and exists for the benefit of the court. Accordingly, the motion may be denied on this basis alone (Sendor v. Chervin, 51 AD3d 1003 [2d 2008] citing Thompson v. Foreign Cars Ctr., Inc., 40 AD3d 965 [2d 2007] ).
However, the failure to apprise the court of the amendment of the complaint and the failure to annex the amended complaint to the instant motion has raised another issue which independently prevents the court from granting CEC's motion for summary judgment.
CPLR 3025(d) pertains to responses to amended or supplemental pleadings and provides as follows:
Except where otherwise prescribed by law or order of the court, there shall be an answer or reply to an amended or supplemental pleading if an answer or reply is required to the pleading being amended or supplemented. Service of such an answer or reply shall be made within twenty days after service of the amended or supplemental pleading to which it responds.
CEC did not state whether it answered plaintiffs' amended complaint. Assuming that it did, the amended answer was not annexed to the motion and that failure would also render the motion procedurally defective (Matsyuk v. Konkalipos, 35 AD3d 675 [2d 2006]; Wider v. Heller, 24 AD3d 433 [2d 2006] ).
Assuming that it did not answer the amended complaint, CEC did not offer an explanation for its failure to do so.
“The requirement that issue be joined before a motion for summary judgment is granted is intended to show the court precisely what the plaintiff's claims and the defendant's position as to them, and his defenses, are” and has been strictly adhered to ( see Miller v. Nationwide Mutual Fire Ins. Co., 92 A.D.2d 723,724 [4d 1983] ).
It has been held that the Supreme Court is powerless to grant summary judgment prior to joinder of issue ( see Shaibani v. Soraya, 71 AD3d 1121 [2d 2010], citing Union Turnpike Associates, LLC v. Getty Realty Corp., 27 AD3d 725, 728 [2d 2006] ).
Therefore, CEC's motion for summary judgment may be denied either because CEC failed to annex all the pleadings or because the motion is premature. For the following reasons, however, the court has reached and has denied CEC's motion on the merits.
CEC's motion seeks summary judgment on liability in its favor and dismissal of the complaint on the basis that ...
To continue reading
Request your trial