Riley-Murphy v. Cmty. Ambulance Co.
| Decision Date | 09 January 2020 |
| Docket Number | Index 16-618852 |
| Parties | KIM RILEY-MURPHY, Plaintiff, v. COMMUNITY AMBULANCE COMPANY, INC., LOUGHLIN VINEYARDS, INC., ZEGEL CLAM LTD., CAPTREE CLAM, INC. and LONG ISLAND CLAM, INC., Defendants. Cal. No. 19-00101OT Mot. Seq. Nos. 002-MotD, 003-MotD |
| Court | New York Supreme Court |
Unpublished Opinion
MOTION DATE 6-20-19
ADJ. DATE 8-1-19
SIBEN & SIBEN, LLP Attorney for Plaintiff
KELLY RODE & KELLY, LLP Attorney for Defendant Community Ambulance Company, Inc.
LAW OFFICES OF CHRISTOPHER GRAZIANO Attorney for Defendant Zegel Clam Ltd.
MAZZARA & SMALL, P.C. Attorney for Defendant Loughlin Vineyards, Inc.
PRESENT: Hon. VINCENT J. MARTORANA Justice of the Supreme Court
Upon the following papers numbered read on these e-filed motions for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by defendant Loughlin Vineyards, Inc., dated May 13, 2019; by defendant Community Ambulance Company, Inc., dated May 16. 2019: Notice of Cross Motion and supporting papers ___: Answering Affidavits and supporting papers by plaintiff, dated July 18 2019; Replying Affidavits and supporting papers by defendant Loughlin Vineyards, Inc., dated July 30.2019; by defendant Community Ambulance Company, Inc., dated July 31, 2019; Other Amended Notice of Motion, by Loughlin Vineyards, Inc.. dated June 6, 2019; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion (seq. 002) by defendant Loughlin Vineyards, Inc., and the motion (seq. 003) by defendant Community Ambulance Company, Inc., are consolidated for the purposes of this determination; and it is further
ORDERED that the motion by defendant Loughlin Vineyards, Inc., dismissing the complaint and the cross claims against it is granted in part and denied in part; and it is further
ORDERED that the motion by defendant Community Ambulance Company, Inc., dismissing the complaint against it is granted in part and denied in part.
Plaintiff Kim Riley-Murphy commenced this action to recover damages for injuries she allegedly sustained as a result of consuming raw oysters on July 16, 2016, during an event in honor of nonparty Jamie Atkinson, which was hosted by defendant Community Ambulance Company, Inc. The subject event allegedly occurred at the premises known as Loughlin Vineyards, located at 255 to 299 County Road 65 in Sayville, New York, which is owned by defendant Loughlin Vineyards, Inc. Atkinson allegedly ordered the defective oysters from defendant Zegel Clam Ltd., for the subject event. Defendants Long Island Clam, Inc., and Captree Clam, Inc., allegedly supplied raw oysters and clams to Zegel Clam Ltd., at the time of the incident. Long Island Clam, Inc., allegedly supplied the raw clams and oysters served at the subject event. Plaintiff alleges claims for strict products liability, breach of implied and express warranties, and common-law negligence. By the complaint, as amplified by the bill of particulars, plaintiff alleges that defendants were negligent in, among other things, the preparation, the handling, the storage, and the distribution of shellfish. By order dated January 26, 2018, the Court (Pitts, J.) granted plaintiffs motion for a default judgment in her favor and against defendants Captree Clam, Inc., and Long Island Clam, Inc., on the issue of their liability.
Loughlin Vineyards, Inc., now moves for summary judgment dismissing the complaint and the cross claims against it. It contends that the claims against it for strict products liability and breach of implied warranty must be dismissed, because it did had no connection or involvement with the food ordered at the subject event. Loughlin Vineyards, Inc., also contends that the claim against it for breach of express warranty must be dismissed, as it made no statement to plaintiff on the date of the incident. In addition, Loughlin Vineyards, Inc., contends that the claim sounding in common-law negligence should also be dismissed, because it owned no duty to plaintiff, as it lacked the requisite awareness to be held liable for the conduct of third parties. In support of its motion, Loughlin Vineyards, Inc., submits, among other things, the deposition testimony of plaintiff, Marc MacDonnell, Omar Carrion, and Patricia Jones. The Court notes that it considered Loughlin Vineyards, Inc.'s amended notice of motion (see CPLR 3025 [a]).
Community Ambulance Company, Inc., also moves for summary judgment dismissing the complaint against it. It contends that the claims against it for strict products liability and breach of implied warranty should be dismissed, because it did not manufacture, sell, or distribute the allegedly defective products. Community Ambulance Company, Inc., also contends that the claim for breach of express warranty should be dismissed, because it made no statement to plaintiff which induced her to consume the allegedly defective oysters. In support of its motion, Community Ambulance Company, Inc., submits, among other things, the deposition testimony of plaintiff, Marc MacDonnell, Omar Carrion, and Patricia Jones. In opposition to the motions by Loughlin Vineyards, Inc., and Community Ambulance Company, Inc., plaintiff contends that triable issues of fact remain which preclude the award of summary judgment.
According to plaintiffs testimony, she and her husband arrived at the subject event at approximately 12:00 p.m. on the date of the incident. It allegedly was a warm and sunny day. Plaintiff stated that there were approximately six tables set up outside for the subject event. Plaintiff also stated that there were at least two tables with food, one of which contained seafood including raw oysters and clams. The raw oysters allegedly were placed over ice. She did not recall whether the oysters were displayed in a shaded area. Plaintiff allegedly did not observe how the oysters were transported to the subject event.
Plaintiff testified that a female was removing the oysters from their shells and was serving the clams and the oysters. She further testified that she was served approximately six raw oysters within an hour of her arrival at the subject event, and that she consumed at least three raw oysters within ten minutes of obtaining them. The raw oysters allegedly neither exhibited an unusual texture nor exuded an unusual odor. Plaintiff allegedly did not take any other food from the table containing seafood.
Patricia Jones testified that she was president of Loughlin Vineyards, Inc., at the time of the incident, and that she has been an owner since 2017. According to Jones' testimony, the subject premises consisted of 15 acres, which included a vineyard, tasting room, storage facility, and processing plant. Jones further testified that the only beverages available at the tasting room were water and wine. She testified that Loughlin Vineyards, Inc., provided crackers for its customers to cleanse their palettes following a tasting. The tasting room allegedly accommodated approximately 22 to 25 people. Jones testified that although the property is not available for groups or organizations to lease or to use for special events, Loughlin Vineyards had been used to host parties. She further testified that no food, refrigeration, cooking facilities, or serving utensils were provided by Loughlin Vineyards, Inc., at such parties.
Jones testified that her father was the prior owner of Loughlin Vineyards, Inc., until his death in 2017, and that he was an honorary member of Community Ambulance Company, Inc. According to her testimony, her father had donated a portion of Loughlin Vineyards for Community Ambulance Company, Inc.' s use for the subj ect event, and that she was not involved in organizing it. Jones further testified that it appeared that an individual by the name of Stephanie from Community Ambulance Company, Inc., appeared to have some control over the setup of the subject event. Jones stated that she did not have any conversation regarding Stephanie's responsibilities for the subject event because Loughlin Vineyards, Inc., "ha[d] done prior events like this for them, so everyone kind of kn[ew] their job description."
Jones testified that she was present at Loughlin Vineyards on the subject date, but that she did not attend the subject event. According to Jones' testimony, Loughlin Vineyards was open on the date of the incident. Her father and her sister were also present on the property on the subject date. Loughlin Vineyards, Inc., allegedly had no other employees present on the subject premises on the date of the incident. Jones allegedly was working in the tasting room during the duration of the subject event. According to Jones' testimony, guests started arriving for the subject event after 11:00 a.m., and atruck arrived at the property between 11:00 and 11:30 a.m. The subject event allegedly started at approximately 11:00 a.m., and ended at approximately 3:00 p.m. There allegedly were approximately 75 and 80 people at the subject event. Jones testified that she did not see anyone set up the picnic tables to display food. She further testified that she never saw any shellfish displayed or any servers present at the subject event.
Construction tape allegedly was used to designate an outside area of approximately 30 feet by 12 feet reserved for Community Ambulance Company, Inc.'s use for the subject event. According to Jones' testimony, Loughlin Vineyards, Inc. permitted Community Ambulance Company, Inc., to use three of its picnic tables for the subject event. It allegedly did not offer to provide any services for the subject event. Jones testified that Loughlin Vineyards, Inc., did not provide cooking tools, napkins, or utensils for the subject event. Community Ambulance...
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