Tyler v Dewey's Inc.

[*1] Tyler v Dewey's Inc. 2009 NY Slip Op 50403(U) [22 Misc 3d 1132(A)] Decided on March 4, 2009 Supreme Court, New York County Kornreich, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 4, 2009
Supreme Court, New York County

Jillian Tyler, Plaintiff,

against

Dewey's Incorporated d/b/a DEWEY'S FLATIRON, "BOUNCER" JOHN DOE 1, "BOUNCER" JOHN DOE 2, KEISHA MORRISON and REGINALD ELI DAWSON, , Defendants.



117213/06



Plaintiff's Attorney is Sullivan, Papain, Block, McGrath & Cannavo, P.C.

Defendant's Attorney is Weiner, Millo & Morgan, LLC

Shirley Werner Kornreich, J.

This action arises from an altercation that took place at Dewey's Flatiron during the early morning hours on September 5, 2006, between plaintiff Jillian Tyler and defendant Keisha Morrison. As a result of the altercation, Ms. Tyler sustained injuries to her face, chest and back. On or about November 14, 2006, Ms. Tyler brought the instant action seeking damages as a result of, inter alia, the negligence of all named defendants. Here, defendant Dewey's Incorporated d/b/a Dewey's Flatiron (Dewey's) moves for summary judgement, pursuant to CPLR § 3212, on the grounds that it provided reasonable security measures on the night in question and that no material issues of fact exist warranting a trial. Plaintiff opposes.

I.Background

In support of its motion, Dewey's offers the examinations before trial of plaintiff Tyler, her friend Angela Miles and a principle and manager of Dewey's, Edward Dobres and Alex Santana. Ms. Tyler testified to the following. The incident in question took place at approximately 3:00 am on September 5, 2006, at Dewey's Flatiron, a bar/restaurant located at the intersection of 25th Street and 5th Avenue in Manhattan. Ms. Tyler went to Dewey's on the evening of September 4, 2006, with her friend Angela Miles and a third woman named Lakisha Watts to attend a private party. They arrived at Dewey's at approximately 1:30 am on September 5, 2006. When they arrived, Ms. Tyler observed two bouncers working at the door. The bouncers were checking ID's, patting down the men and examining the purses of the ladies seeking entry.

According to Ms. Tyler, Dewey's had two floors. Upon walking in the front door, a staircase was to the left and a bar was located to the right. Between 75 and 100 people were [*2]present on the first floor. Ms. Tyler averred that she went to the bar and ordered a drink; this was the only drink she had that night. Ms. Tyler stated she remained on the first floor dancing with her friends for approximately one hour.

Approximately 15- 20 minutes after finishing her drink, Ms. Tyler said she Ms. Miles and Ms. Watts went upstairs to use the bathroom. There was a bar on the second floor, and Ms. Tyler saw one bartender serving drinks. She did not recall seeing any other people working upstairs at the time. Upon reaching the head of the staircase to return downstairs, Ms. Tyler averred that she exchanged words with Ms. Morrison. According to Ms. Tyler, Ms. Morrison looked at her and started screaming, "What the F are you looking at? I'll punch you and her in the face." Ms. Tyler and Ms. Morrison were about an arms length from each other and argued for about two minutes. Ms. Tyler stated that she never met Ms. Morrison before the early morning hours of September 5, 2006. Ms. Morrison hit Ms. Tyler and the two started to fight exchanging blows to the face. Ms. Tyler said the fight felt like it lasted eight to ten minutes, but she was not sure how long it actually was and could not recall how the fight ended.

Ms. Tyler recalled that an unidentified gentleman escorted her to the bathroom on the first floor where she noticed her injuries. This same gentleman also escorted her outside Dewey's after the fight. She left Dewey's between 3:00-3:30 am. As a result of the fight, Ms. Tyler sustained cuts to her face and stab wounds to her chest and back. She did not know if anyone working at Dewey's witnessed the fight.

At the beginning of the fight, Ms. Miles was standing on the stairwell above Ms. Tyler on the left-hand side. According to Ms. Tyler, Ms. Miles left during the fight to call the police and alert the bouncers. Ms. Tyler also avers that Ms. Miles had a restraining order issued against Ms. Morrison arising from an assault that occurred approximately one year prior to this incident.

Angela Miles testified that when she and her friends arrived at Dewey's, two bouncers were standing outside checking the inside of ladies' handbags and patting down the men. Upon entry, she described the first floor as being "crowded...[and] noisy" and testified that as she and Ms. Tyler walked into the ladies room, Ms. Miles saw Ms. Morrison, who she knew, standing near a table. Ms. Miles then proceeded to the bathroom, stating that she was nervous and "tired of being arrested" due to incidents that seemed to arise every time she came in contact with Ms. Morrison. She told Ms. Tyler that Ms. Morrison was outside by the stairs, and they left the bathroom and went to the stairs.

When they arrived at the staircase, Ms. Miles testified that Ms. Morrison was looking directly at her. Ms. Morrison then began talking with Ms. Tyler and Ms. Tyler said "I want nothing to do with you." Ms. Morrison threw a punch at Ms. Miles but, because Ms. Tyler was standing closer to Ms. Morrison, the punch hit Ms. Tyler and the two started fighting. During the fight, Ms. Miles said she was yelling "Oh my god, oh my god break it up!" People were standing around watching but no one attempted to break up the fight until a "random" man came over and separated them. Ms. Miles stated that the fight lasted for four to five minutes. During the fight, Ms. Miles did not see Ms. Morrison holding any weapon. However, once the fight was over, she claimed she saw an unidentified object in Ms. Morrison's hand, saw that Ms. Tyler's "face was split" and saw that Ms. Tyler was bleeding. Ms. Miles and Ms. Tyler went down the stairs and one of the bouncers at the front door approached them. Ms. Miles told the bouncer what happened and he went upstairs. Ms. Miles then called the police. [*3]

During her time inside Dewey's, Ms. Miles averred she did not see any bouncers walking around. Ms. Miles only saw the "bartenders who were behind the bar. [There were no other Dewey's employees] mixed in the crowd with us."

Edward Dobres is the president and chairman of Dewey's. Mr. Dobres averred that Dewey's Manager Alex Santana was in charge of the bar's day-to-day operations. Mr. Dobres would take care of payroll, the bills and a good portion of the back office work. Mr. Santana, the bar's manager, controlled the hiring and firing of employees. In September 2006, Dewey's employed between twelve and fifteen people, including kitchen staff, porters, bartenders, waitresses, managers, bouncers and an occasional DJ. According to Mr. Dobres, Dewey's would typically have two to three bouncers working on a particular evening depending on how many patrons the bar was expecting. On this point, Mr. Dobres stated: Usually we have a bouncer on Thursday, Friday and Saturday nights, either one or two, depending on the time of year and if we have - if we know we have more people are going to be there. Like usually on a Thursday or Friday, we have two. Saturday nights we have one or two, depending, if we know its going to be crowded or not. If there's a big game and we know its going to be crowded, that kind of thing.

The bouncers were responsible for checking ID's and making sure people at the bar "behav[ed] themselves" by not causing arguments or fights due to being overly intoxicated. When two bouncers were on duty, one would be stationed at the front, checking ID's, and the other was responsible for roaming around the club to make sure no altercations were taking place. If an altercation were to arise, the bouncers were instructed to control the situation and bring everyone outside to avoid any damage to the people and property inside.

On the day in question, Mr. Dobres testified Dewey's was open for a private party. According to Mr. Dobres, Mr. Santana was responsible for making all of the decisions surrounding the scheduling and execution of private parties. Mr. Dobres averred that those wishing to rent out the bar for a private party were responsible for providing their own security. Dewey's would provide one or two additional bouncers depending on the size of the crowd. Mr. Dobres did not work on the night at issue and thus did not witness the incident.

Alex Santana, Dewey's manager, was responsible for Dewey's daily operations which included staff scheduling, counting the bar's daily cash intake and the booking of private parties and events. In September 2006, Dewey's had 16 employees on staff, which included three bouncers: Kevin Nesbit, Ed Gay, and a gentleman identified as "Jay." On a typical night, Dewey's would have two bouncers on duty for the purpose of security/crowd control and to ensure the safety of the patrons. In this regard, Mr. Santana stated that the bouncers and bartenders usually worked as a team. According to Mr. Santana: if anybody's drinking a little too much...the bartenders usually assign a bouncer to keep an eye on the person so everything doesn't get out of line. But until that person...cross[es] that line or something...the bouncer doesn't get in the way. Usually the bartender would be able to handle the [customers].

Mr. Santana testified that when two bouncers were on duty, both usually were stationed at the front door. They would then take turns walking around the club to make sure the patrons were [*4]behaving. If a confrontation involving patrons were to arise, the bartenders were instructed to notify the bouncers and to not otherwise get involved. If a fight were to begin on the second floor, the bartender was to notify one of the bar-backs who would in turn get one of the bouncers.

Mr. Santana arranged the private party at issue via a verbal agreement with the party's promoter, defendant Reginald Dawson. No written agreement was made. The only document involved was a "general proposal" Mr. Dawson filled out prior to the party. This proposal merely contained a summary/check list of items for the customer to select including whether or not he wanted a cash bar, what the price would be per head and a list of available food platters. Since Mr. Dawson's party was over labor day weekend, Mr. Santana had trouble putting a staff together. He was only able to find two bartenders, two bar backs, one waitress and one bouncer to staff the party. In addition, Mr. Dawson said he expected roughly 200 people to attend the party. Therefore, Mr. Santana claimed he told Mr. Dawson that if he wanted to have the party, he would have to provide two additional bouncers for security purposes since one bouncer would not be sufficient for 200 people. Mr. Dawson agreed and also agreed to provide a metal detector at the front entrance. Mr. Santana insisted on having a metal detector due to the anticipated crowd size and the fact that he had no prior experience working with Mr. Dawson. As to security, Mr. Santana stated: So, if I were to have like three bouncers, all of my bouncers available that evening, it would have been our responsibility. But it was verbal, mutual agreement that in order to provide that to the party, he got me two more bouncers of his crowd, his people, so that way..we were able to [have the party]...I cannot fully feel in my clear conscience completely responsible for the patrons when I only - from the beginning I made it perfectly clear that with one bouncer I wouldn't be able to do it.

Despite this assertion, Mr. Santana admitted that he had not discussed the issue of who would be primarily responsible for security with Mr. Dawson. In addition, Mr. Santana stated that when Dewey's was rented out for a private party, Dewey's employees staff the party.

Mr. Santana stated that he first met Mr. Dawson's bouncers the night of the event, but also testified that he could not remember meeting both of them. On this point, Mr. Santana stated "Yeah, I remember meeting one guy, but I'm not sure if it was a guy or a girl, the other one. I can't say." Mr. Santana claimed that he instructed the bouncers that they would be checking ID's and walking around the bar to ensure the safety of everyone there. Mr. Santana placed his bouncer, Kevin Nesbit, in charge of the front door because he trusted him to properly handle admission to the bar including the checking of ID's, collection of cash and distribution of tickets. Mr. Santana also said he could not recall where the other two bouncers were located throughout the evening because "it was a pretty hectic night."

On the night in question, Mr. Santana was bartending on the first floor. He was not sure how many people attended the party, but, at some point, Mr. Santana told Mr. Nesbit to stop letting customers in due to the large crowd inside. Mr. Santana was in the cellar when the fight occurred.

II.Conclusions of Law [*5]

It is well established that summary judgment may be granted only when it is clear that no triable issues of fact exist. Alvarez v. Prospect Hosp., 68 NY2d 320, 325 (1986). The burden is upon the moving party to make a prima facie showing of entitlement to summary judgment as a matter of law. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Friends of Animals, Inc. v. Associated Fur Mfts., Inc., 46 NY2d 1065, 1067 (1979). A failure to make such a showing requires a denial of the summary judgment motion, regardless of the sufficiency of the opposing papers. Ayotte v. Gervasio, 81 NY2d 1062, 1063 (1993). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a material issue of fact. Alvarez, supra, 68 NY2d at 324; Zuckerman, supra, 49 NY2d at 562. The papers submitted in support of and in opposition to a summary judgment motion are examined in a light most favorable to the party opposing the motion. Martin v. Briggs, 235 AD2d 192, 196 (1st Dept 1997). Mere conclusions, unsubstantiated allegations, or expressions of hope are insufficient to defeat a summary judgement motion. Zuckerman, supra, 49 NY2d at 562. Upon the completion of the court's examination of all the documents submitted in connection with a summary judgment motion, the motion must be denied if there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 (1978).

A landowner owes those on his property a duty of care to maintain the property in a safe condition. Maheshwari v. City of New York, 2 NY3d 288, 294 (2004). Both a landlord and a permittee with a contractual obligation to provide security have a common-law duty to take minimal precautions to protect users of the property from foreseeable harm, including the criminal acts of third parties. Florman v. City of New York, 293 AD2d 120, 124 (1st Dept 2002). In cases arising out of injuries sustained on another's property, the breadth of the possessor's duty is determined by prior experience and the "likelihood of conduct on the part of third persons...which is likely to endanger the safety of the visitor." Maheshwari, 2 NY3d at 294. This duty arises only where the possessor knows or has reason to know that there is a likelihood that third persons may endanger the safety of those lawfully on the premises, as where a landlord is aware of prior criminal activity. Florman, 293 AD2d at 124. Once a plaintiff establishes that such a duty exists, she must demonstrate that the defendant breached this duty by failing to provide minimal precautions against the foreseeable criminal acts of third parties, and that the breach was the proximate cause of her injuries. Barshay v. 273 Brighton Beach Ave. Rest. Inc., 20 Misc 3d 1116A, 2008 NY Slip Op 51364U, *4 (Sup Ct, Kings County 2008) citing Burgos v. Aqueduct Realty Corp., 92 NY2d 544 (1998). The issue of what safety precautions may be reasonably required is "almost always" a question of fact for the jury. Forrester v. Port Authority of New York and New Jersey, 139 AD2d 449, 451 (1st Dept 1988) quoting Nallan v. Helmsley-Spear, Inc., 50 NY2d 507, 520 n 8 (1980).

Here, in viewing the facts in a light most favorable to Ms. Tyler, issues of fact exist as to whether Dewey's provided adequate security on the night in question. Only one Dewey's bouncer, Kevin Nesbit, was working on September 5, 2006. The two other bouncers working were provided by Mr. Dawson. Dewey's argues that it provided reasonable security measures by having a total of three bouncers on duty. However, the testimony establishes that two bouncers were stationed outside the front door, and no testimony exists as to the whereabouts or conduct of the third bouncer. No witness, including Mr. Santana, saw this unidentified third bouncer [*6]walking around the club. Ms. Tyler testified that she only saw a bartender while on the second floor. Ms. Miles testified that she saw no bouncers walking around or mingling with the crowd. Mr. Santana testified that due to the amount of people expected to attend the party, he requested that Mr. Dawson provide a metal detector. Considering the fact that Mr. Santana viewed the party as necessitating additional security measures, an issue remains as to whether security was sufficient. Cf. Vega v. Ramirez, 2008 NY Slip Op 9725 (Sup Ct, New York County 2008) (summary judgment awarded dismissing action in instance where stabbing occurred at 3:00 a.m. at a club and five or six security guards were enough to deal with any trouble that might arise); Djurkovic v. Three Goodfellows, Inc., 1 AD3d 210 (1st Dept 2003) (where plaintiff offered no expert testimony in field of security, no breach of duty since "[d]efendant, in fact, took security measures against criminal attacks involving weapons, including the hiring of state-licenced security guards who were present throughout the club in significant number, and who conducted patdowns and operated metal detectors at the entrance.")

Here, a jury question exists as to whether the number and location of the bouncers was reasonable, as to the time during which the event occurred would have permitted intervention.

The court also notes that in support of its motion, Dewey's offered the affidavit of Henry C. Branche, President of Branche Security Consultants Inc., as proof that it took reasonable security measures on the night in question. In this affidavit, Mr. Branche stated he based his opinion on a review all of the submitted deposition testimony, plaintiff's Verified Bill of Particulars, the police report and floor plans/drawings of Dewey's. Neither the police report nor the floor plans were submitted by Dewey's as part of the record. As such, Mr. Branche's affidavit was not considered. State of New York v. U.S. Fidelity and Guaranty Co., 221 AD2d 849 (3d Dept 1995); North v. Travelers Inc. Co., 218 AD2d 901 (3d Dept 1995); Jones v. City of New York, 32 AD3d 706 (1st Dept 2006). Accordingly, it is

ORDERED that defendant Dewey's Incorporated d/b/a Dewey's Flatiron's motion for summary judgment is denied.

ENTER

DATE: March 4, 2009___________________________________

New York, NYJ.S.C.