Kekovic v 13th St. Entertainment LLC

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Kekovic v 13th St. Entertainment LLC 2012 NY Slip Op 33133(U) June 14, 2012 Supreme Court, New York County Docket Number: 116636/09 Judge: Saliann Scarpulla Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. , SCANNED ON 11251201 I '*. [* 1] SUPREME COURT OF THE STATE QF NEWYORK NEW YQRK COUNTY PART PRESENT: Justice Index Number : 116636/2009 KEKOVIC, SlNlSA INOH NO. VS. lyoTlow DATE 13TH STREET ENTERTAINMENT SEQUENCE NUMBER : 002 ~ MOTION SEQ. NO. SUMMARY JUDGMENT 1 e . The following pspm, mrrnkrsd 1 to Notice of MotionlOrder t m w Cause o o Answering Affidavits - Exhibits - ,were mad on thio rnotlon totfar Affidavits * + . I -Exhibits I Ws). IWa). IW S ) . Replylng Affldavb Upon the foregoing papers, It Is ordered that this motion Is decided per the memorandu which disposes of motion se E 3 3 RECEIVED JUN 18 2af2 MOTION SUPPORT OFFICE - NYS SUPREME COURT CIVIL Dated: 1. CHECK ONE: - Jbb ................................................. ~,~~~~,~,~,~..~,.... @ W E DISPOSED 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ....l.....ll.......l....., ~T~ 0NON-FINALDISPOSITION [* 2] Inccx No,: 16636/09 - against- DECISION AND ORDER 13TH STREET ENTERTAINMENT LLC D/B/A KISS & FLY NIGHTCLUB, Defendant. _______________--_____________rl________------"----------------------- X 13TH STREET ENTERTAINMENT LLC D/B/A KISS & FLY NIGHTCLUB, Third-party Plaintiff, - againstALL SEASON PROTECTION SERVICES, INC,, Third-party Defendant. l__________________llr________________l_--------------~---"----------- For PlaintifF Weiser & Amciates, LLP 150 East 58"' Street, 27'" Floor New York, NY 10155 X For DefendantlThird-Party Plaintiff Havkins Roseiifeld Ritzert & Varriale, LLP 1065 Avenue of the Americas, Suite 800 New York, NY 100 18 For Third-party Defendant: Conway Farrell Curtin & Kelly, P.C. 48 Wall Street, 201"Floor New York, NY 10005 Papers considered in review of these motions for summary judgment: Notice of MotiodAffin Support . . . . . . . . . . l Notice ofMotion/Aff in Support . . . . . . . . . .2 Affs in Opp . . . . . . . . . . . . . . . . . . . . . . .3,4,5 Reply Affs . . . . . . . . . . . . . . . . . . . . . . . 6 , 7 , 8 HON. SALIANN SCARPULLA, J.: In this action to recover damages for personal in,Jries, defendant 13thStreet Entertainment LLC d/b/a Kiss & Fly Nightclub (L'13th Street") moves for summary 1 [* 3] judgment dismissing the complaint and for summary judgment on its third party complaint. Third-party defendant All Season Protection Services, Inc. ( All Season ) moves for summary judgment dismissing the third-party complaint or, in the alternative, to amend its answer. On September 20, 2009, plaintiff Sinisa Kekovic ( Kekovic ) was a customer at 13t 1 Street s Kiss & Fly Nightclub when he sustained personal injuries after being struck on the head with a bottle of vodka by an unknown assailant. Kekovic commenced this action seeking to recover damages for the injuries he sustained, alleging, inter alia, a violation of General Obligations Law 8 11-101 ( Dram Shop Act ). 13thStreet then commenced a third-party action against All Season, a security company it retained to provide security services at the nightclub pursuant to a letter acknowledgment dated December 2, 2007 ( first agreement ) and thereafter, a security services contract executed in November 20 10 ( second agreement ). Only the second agreement contained indemnification clauses. 131h Street alleged claims for contribution, contractual indemnification and common law indemnification. 13thStreet now moves for suininary judgment dismissing the complaint and for summaryjudgment on its third-party complaint and All Season moves for summary judgment dimissing the third-party complaint, or, in the alternative to amend its answer to include a counterclaim for contractual indemnification. Any other claims asserted by Kekovic have been abandoned. 2 [* 4] 13thStreet argues that it can not be held liable under the Dram Shop Act because Kekovic can not identify his assailant. Kekovic testified that he did not know where the bottle came from, he did not see the bottle that he was hit with before the incident, he did not see anyone holding a bottle prior to the incident, and there is no evidence that 13 h Street served the alleged assailant while he or she was visibly intoxicated. Further, even though Kekovic described the three males sitting at the table next to his table as loud and boisterous, such does not meet the standard of visible intoxication so as to be held liable under the Dram Shop Act. With regard to its claims for indemnification asserted in its third-party complaint, 13 h Street first maintains that although it signed the second agreement (which contained indemnification clauses) after Kekovic s incident, 13 Street and All Season intended the agreement to have retroactive effect beginning March 6,2008. 13t Street submits the affidavit of its director of operations Ryan Tarantino ( larantino ), who provided that he intended the second agreement to apply retroactively as of March 6, 2008. As such, the indemnification clauses in the second agreement were in effect at the time of the incident. 13thStreet also contends that it is entitled to common law indemnification because it did not maintain any direction or control over security and argues that All Season breached its obligation to procure insurance naming 13thStreet as an additional insured. 13thStreet argues that it is entitled to payment for all past and future costs and fees associated with the defense of this action. 3 [* 5] In opposition to 13thStreet s motion, Kekovic argues that issues of fact exist as to whether 3 3thStreet violated the Dram Shop Act, based on Kekovic s examination before trial testimony that (1) there was a group of three men sitting at the table next to Kekovic who Kekovic observed as being extremely loud and boisterous for one and a half hours; (2) a waitress employed by 13* Street provided the three men with bottle service at their table, supplying them with several bottles of vodka; (3) the three men at the table next to Kekovic were wasted ; and (4) one of the men from that table was believed to be his attacker based on the fact that Kekovic s back was to that table when he was clubbed from behind with a bottle of vodka and that Kekovic s friends, who were with him that night, told him that it was a Spanish or African-American man seated at the table next to them who struck him. In support of its motion and in opposition to 13thStreet s motion, All Season first argues that 13thStreet improperly bases its arguments in support of its claim for contractual indemnification on the language contained in the second agreement because that second agreement was not referenced anywhere in 13thStreet s pleadings. Rather, the third-party complaint and bill of particulars refer only to the first agreement. In any event, the second agreement was not in effect at the time of the subject incident. While Tarrantino maintains that he intended the agreement to be in effect as of March 6, 2008, there is no indication or evidence that All Season intended the agreement to have such retroactive effect or that any course of conduct demonstrated same. Rather, All Season 4 [* 6] believed that it was operating under the first agreement, until the second agreement became effective, which only occurred when it was executed in November 20 10. Furthermore, even if the second agreement was in effect, the indemnification clause was not triggered because (1) the attack was unrelated to any services provided by All Season at the time of the incident; (2) All Season did not violate any warranties, representations or covenants under the agreement; and (3) Rekovic did not assert any claims of negligence against All Season. All Season also argues that the common law indemnification claim must be dismissed because it provided adequate security, there was no evidence that it was negligent in any other way, and the attack was spontaneous and unforeseeable. Finally, All Season submits an insurance policy covering the period from June 1 1,2009 through June 11, 20 10, and explains that contrary to 13thStreet s contention, it did procure an insurance policy naming 13thStreet as an additional insured. Discussion A movant seeking summary judgment must make aprima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med, Ctr., 64 N.Y.2d 851, 853 (1 985). Once a showing has been made, the burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320,324 (1986); Zuckerman v. Ct ofNew York, 49 N.Y.2d 557 (1980). iy 5 [* 7] General Obligations Law lj 11- 101, the "Dram Shop Act" states: Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages. To establish a prima facie case of liability, a plaintiff has the burden of presenting sufficient proof to lead to the reasonable conclusion that, an establishment sold or provided intoxicating alcohol to a third party while on notice that the third party was already "actually or apparently, under the influence of liquor." Senn v. Scudieri, 165 A.D.2d 346, 350 ( lStDept. 1991). Proof of visible intoxication can be shown by circumstantial evidence, including expert and eyewitness testimony. However, speculative and conclusory assertions are insufficient to raise an issue of fact with respect to this claim. Kelly v. Fleet Bank, 271 A.D.2d 654,655 (2d Dep't 2000); Conrad v. Buyside Bowling & Recreation Centre, 209 A.D.2d 467 (2ndDept. 1994). Here, the Court finds that Kekovic cannot establish whether his attacker was actually or apparently intoxicated. Kekovic was unaware of the identity of the individual who struck him with a bottle from behind. Even if the attacker was one of the individuals seated at the table next to his, Kekovic's blanket observations concerning the bottles on the table and the boisterous behavior of the men seated there are too generalized to form the basis for this claim. Kekovic would be speculating about the conduct and demeanor 6 [* 8] of each individual at the table, even if the group as a whole appeared loud, boisterous and wasted. Furthermore, while Kekovic maintains that his friends who were with him that night told him that his attacker was Spanish or African American, none of those friends provided an affidavit, examination before trial testimony or any other evidence sufficient to raise an issue of fact as to the identity and/or visible state of intoxication of the specific attacker. There is no other evidence before the Court concerning the identity, appearance or demeanor of the individual who struck Kekovic. Accordingly, Kekovic s complaint is dismissed. Consequently, the third-party action is also dismissed as a necessary consequence of dismissing the complaint in its entirety and All Season s request to amend the third- party complaint is denied as moot. Turchioe v. AT&T Communs., 256 A.D.2d 245 (1 Dept. 1998). The court notes, however, that with regard to the third-party complaint, contrary to 13t 1Street s contention, the evidence presented does not establish, as a matter of law, that the second agreement, executed in November 20 10 (which contained indemnification clauses), was in effect as of March 6, 2008 and that the parties intended that it apply retroactively as of that date. See generally Temmel v. 2515 Broadway Assocs., L.P., 18 A.D.3d 364 (1 Dept. 2005); Pena v. Chateau Woodmere C o p , 304 A.D.2d 442 (Ist Dept. 2003). While Tarantino indicates that he intended the second agreement to apply retroactively, no evidence has been presented to establish that both parties shared that intention. 7 [* 9] In any event, even if the second agreement was in effect, indemnification was not triggered. Pursuant to the second agreement, All Season agreed to indemnify 13thStreet (1) from all claims, including reasonable attorneys fees, in connection with loss of life, personal injury andlor damage to property arising from or out of the provision of security services by All Season; (2) in connection with All Season s breach of any warranties, representations or covenants contained in the second agreement; or (3) from all claims of negligence or intentional acts or omissions of All Season at the nightclub. Kekovic alleges that his injuries occurred because someone at 13thStreet served alcohol to an intoxicated patron. Kekovic s alleged injuries did not implicate any actions, omissions, or breaches on the part of All Season and therefore, the indemnification clause was not triggered. Therefore, 13thStreet s claim for contractual indemnification is dismissed. Further, 13thStreet claims that All Season failed properly to procure insurance in accordance with its obligation to do so in the first agreement, because the insurance policy does not specifically list 13thStreet as an additional insured, rather it is blanket endorsement for additional insureds. 13th Street fails to provide any support for its argument that it needed to be specifically named in the insurance policy, rather than being covered under a blanket endorsement, and the court finds that the blanket endorsement was sufficient to satisfy All Season s obligation to procure insurance under the first agreement. See Perez v. Morse D e e Int Z, Inc., 10 A.D.3d 497 (lstDept. 2004); isl Samaroo v Patmos Fifth Real Estate, h c . , 32 Misc. 3d 1209A (Sup. Ct., Kings Co. 201 1). 8 [* 10] Finally, 13thStreet's claims for contribution and common law indemnification are dismissed. In the case of common-law indemnification, the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident for which the indemnitee was held liable to the injured party by virtue of some obligation imposed by law. See Correia v. Professional Data Mgmt., Inc., 259 A.D.2d 60 ( lstDept. 1999). Here, there is no evidence that All Season contributed to the causation of Kekovic's injuries in any way. In accordance with the foregoing, it is hereby ORDERED that defendant 13thStreet Entertainment LLC d/b/a Kiss & Fly Nightclub's motion for summary judgment dismissing the complaint and for summary judgment on its third-party complaint is granted only to the extent that the complaint is dsmissed; and it is further ORDERED that third-party defendant All Season Protection Services, Tnc. 'smotion for summary judgment dismissing the third-party complaint is granted and the third-party complaint is dismissed. This constitutes the decision and order of the Court. Dated: New York, New York June 14,2012 9

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