Sachar v AMC Entertainment Inc.

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Sachar v AMC Entertainment Inc. 2013 NY Slip Op 33393(U) December 16, 2013 Supreme Court, New York County Docket Number: 106847/2010 Judge: Shlomo S. Hagler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: Hon. Shlomo S. Hauler Justice \LED PART: 17 RAND1 SACHAR, Plaintiff, COUNTY CLE OFFICE -againstNEW !&EX NO.: 106847/2010 AMC ENTERTAINMENT INC., s/h/a LOEWS THEATRE; MOTION SEQ. NO.: 004 COLUMBIA PICTURES INDUSTRIES, INC., s/h/a COLUMBIA PICTURES; SONY PICTURES ENTERTAINMENT, INC.; REGAL CINEMAS, INC., s/h/a REGAL ENTERTAINMENT GROUP; DECISION and ORDER JOHN DOE THEATER MANAGER ; and JOHN DOE PUSHEFUS , Defendants. Motion by DefendantRegal Cinemas, Inc., s/h/a Regal Entertainment Group ( Regal ),pursuantto CPLR 3212, for summary judgment dismissing the complaint, and all cross-claims as against it. Papers Numbered Defendant Regal s Notice of Motion for Summary Judgment Dismissing the Complaint and ............................................. All Cross-Claims Against It ........................................ Affirmation of Defendant Regal s Counsel in Support of Motion with Exhibits A through G ........... Defendants Columbia & Sony s Cross-Motion for Summary Judgment ......................................... Affirmation of Defendants Columbia & Sony s Counsel in Support of Cross-Motion with Exhibits A through D .. .................. .................. Affirmation of Defendants Columbia & Sony s Counsel in Partial Support and Partial Opposition to Defendant Regal s Motion ........................................... ............................................ fendants Columbia & Sony s Affirmation of Defendant Regal s Counsel in Partial Opposition t Cross-Motion with Exhibits A & B . Affirmation of Plaintiffs Counsel in Opposition to Defendant Regal s Motion and to Columbia & Sony s Cross-Motion .................................. ........................... Defendant Regal s Co ..................................... 0 No dyes 4 5 6 7 8 ................. Defendant Columbia & Cross-Motion ..................................................................................................................... Reply Affirmation of Defendant Columbia & Sony s Counsel to Plaintiffs Opposition to the Cross-Motion ...................................... .......................................... Transcript of Oral Argument of April 29, 2013 ........... .................. Cross-Motion: 1 2 3 9 10 11 Number of Cross-Motions: 1 Cross-Motionby DefendantsColumbia Pictures Industries, Inc., s/h/a Columbia Pictures( Columbia )and Sony Pictures EntertainmentInc. ( Sony ), pursuant to CPLR 3212, for summary judgment dismissing the complaint, and all cross-claims as against it. Upon the foregoing papers, it is hereby ordered that the Motion and the Cross-Motion are both granted as set forth in the attached separate written Decision and Order. Dated: December 16, 2013 New York, New York Hon. Shlomo S. Hagler, J.S.C. Check one: 0 Final Disposition Motion is: 0 Granted 0 Granted Cross -Motion is: 0 Non-Final Disposition 0 Denied Ll Granted in Part 0 Denied 0 Granted in Part 0 Other 0 Other [* 2] FILED AMC ENTERTAINMENT INC., s/h/a LOEWS THEAT COLUMBIA PICTURES INDUSTRIES, INC., s/h/a COLUMBIA PICTURES; SONY PICTURES DEC 26 2013 ENTERTAINMENT, INC.; REGAL CINEMAS, INC., s/h/a REGAL ENTERTAINMENT GROUP; COUNTY CLERK S OFFICE JOHN DOE THEATER MANAGER ; JOHN DOE PUSHER/S , NEW YORK DECISION & ORDER Defendants. Shlomo S. Hagler, J.: In this personal injury action, defendant Regal Cinemas, Inc., s/h/a Regal Entertainment Group ( Regal ) moves, pursuant to CPLR 32 12, for summary judgment dismissing the complaint, and all cross-claims as against it. Defendants Columbia Pictures Industries, Inc., s/h/a Columbia Pictures ( Columbia ) and Sony Pictures Entertainment Inc. ( Sony ) (together, Columbia and Sony ) cross-move, pursuant to CPLR 32 12, for the same relief. Plaintiff Randi Sachar ( plaintiff or Sachar ) opposes the motion and cross-motion. Both the motion and cross-motion are consolidated herein for disposition. Backmound Plaintiff brings this action to recover for injuries she sustained in a fall down a staircase on premises owned by Regal. Plaintiffs accident occurred on March 27,2008, when plaintiff attended a screening of a movie called 2 1, produced by Columbia and Sony, and shown at Regal s theatre. [* 3] The movie was being shown for free to persons receiving passes from Columbia and Sony representatives outside the theatre. Plaintiff was accompanied by a group of teenage boys, and was one of perhaps several hundred people who lined up to see the movie. According to deposition testimony, plaintiff and her group, along with many others, were directed by a Regal employee, upon entering the theatre, to go upstairs to the balcony level, after it was determined that the first floor seating area was already filled. Plaintiff and numerous other patrons walked up three levels of stairs to the balcony floor. Upon reaching that point, plaintiff and the persons around her were directed to go back down to the first floor, as all of the seats in the balcony had been taken, and there might be seats on the first floor after all. Plaintiff walked down the stairway holding on to the banister. She traveled down the first two levels without incident but, as she walked down the last flight, plaintiff recalls that she felt a thud behind me like a pushing thud (Sacher EBT transcript at 68), causing her to tumble at least eight steps down to the landing. Plaintiff allegedly sustained injuries as a result of the fall. Plaintiff brought this action against Regal as the owner of the theatre, and against Columbia and Sony, which presented the movie and promoted the free passes. Regal is charged with ineffectual crowd control. Columbia and Sony are charged with the same, as well issuing many more tickets for the screening than there were seats to be filled. Such overbooking is, apparently, common in the industry, to ensure a full house. Discussion It is often noted that summary judgment is a drastic remedy. Vega v Restani Const. Corp., 18 NY3d 499,503 (2012). [Tlhe proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to -2- [* 4] eliminate any material issues of fact from the case. Meridian Mgt. Corp. v Cristi Cleaning Serv. Corp., 70 AD3d 508,5 10 (1st Dept 20 lo), quoting Winegrad v New York Univ. Med. Ctr., 64 NY2d 85 1,853 (1985). Once the proponent of the motion meets this requirement, the burden then shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that precludes summary judgment and requires a trial. Ostrov v Rozbruch, 91 AD3d 147,152 (1st Dept 2012), citing Alvarez v Prospect Hosp., 68 NY2d 320,324 (1 986). If there is any doubt as to the existence of a triable issue of fact, summary judgment must be denied. Rotuba Extruders v Ceppos, 46 NY2d 223 (1978); Grossman v Amalgamated Hous. Corp., 298 AD2d 224 (1st Dept 2002). To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty of care owed to the plaintiff, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries. Miglino v Bally Total Fitness of Greater N. Y., Inc., 92 AD3d 148, 159 (2d Dept 201 l), afld 20 NY3d 342 (2013); see also Kenney v City ofNew York, 30 AD3d 26 1,262 (1st Dept 2006), citing Palsgraf v Long Is. R.R. Co., 248 NY 339 (1 928). Case law in this State has set forth a standard for the duty of care owed to a plaintiff where the condition complained of is insufficient crowd control. In such instances, the plaintiff must show that [s]he was unable to find a place of safety or that [her] free movement was restricted due to the alleged overcrowd[ing] conditions. Greenberg v Sterling Doubleday Enters., 240 AD2d 702,703 (2d Dept 1997),quoting Palmieri v Ringling Bros. & Barnum & Bailey CombinedShows,237 AD2d f 589, 589 (2d Dept 1997); see also Benanti v Port Auth. o N Y. & N.J., 176 AD2d 549 (1st Dept 1991). -3- [* 5] Plaintiff, at her deposition, describes the conditions right before she was pushed as follows. After turning to descend the stairs back to the first floor, there was a stampede of people rushing out from behind me . . . . Sacher EBT transcript at 68. Plaintiff told the boys in her group to walk quietly down the steps, while she could hear a commotion behind her. Id. [Llots and lots of people were around her. Id. at 77. Plaintiff, however, kept [her] pace steady, as she had been trained to keep the boys walking in an orderly manner. Id, at 79. Plaintiff did not hear anyone tell the crowd to hurry. Plaintiff descended the steps with her group all together around her. One person in the group, a boy named Alex, was to plaintiffs left, [mlaybe one or two steps down. Id. at 96. She recalls that the people directly in front of her were [her] boys (id.), and that some were in front of me, some to the left of me, some were below me. Id. Plaintiff does not recall hitting any person in front of her as she tumbled down the stairs, but remembers feeling that I was hitting steps as she fell. Id. She claims to have done [tlwo or three somersaults, and that it all happened in slow motion. Id. at 101. In Palmieri (237 AD2d 589), a plaintiff was pushed from behind by an unidentified person as she descended a crowded flight of stairs. She recalled that there were three or four steps separating her from her daughter, descending in front of the plaintiff when the plaintiff fell. Id. at 590. Her daughter testified that people were bumping into her as she descended, but that no one pushed her or caused her to lose her balance. Id In Palmieri, the Court found no evidence that the plaintiffs freedom of movement was unduly restricted, or that she was unable to find a place of safety. Id, -4- [* 6] Likewise, in Benanti (176 AD2d 549), a plaintiff was jostled from behind and fell as he merged with a crowd of commuters disembarking from a bus. The plaintiff indicated that, while plaintiff was surrounded by people, he had a space of several feet to the next person in front of him ... . Id. at 549. The plaintiff in Benanti was unable to show that, under the circumstances, he was unable to find a place of safety or that his free movement was restricted due to the alleged overcrowded conditions. Id. In Hsieh v New York Ct Tr. Auth. (2 16 AD2d 53 1 [2d Dept 1995]), a plaintiff was injured iy when he was riding down an escalator, when someone in front of the plaintiff fell, and other passengers, as well as plaintiff, fell one after another. Id. at 53 I. While the evidence showed that there were only four or five people in front of the plaintiff on the escalator, and approximately one hundred more on, or waiting to get on, the escalator, there was still no evidence that plaintiffs freedom of movement was unduly restricted by the crowd or that the crowd was [so] unruly and unmanageable as to allow for liability against the defendant. Id. In the present case, while there is evidence of commotion and noise behind plaintiff, her own testimony indicates that she was descending the steps at her own chosen pace, and was not hemmed in by an unruly crowd. Under the circumstances, it cannot be said that plaintiff was unable to find a place of safety or that [her] free movement was restricted due to the alleged overcrowded conditions. Benanti, 176 AD2d at 549. Plaintiffs reference to the overall excitement and anxiety of the crowd waiting to enter the theatre does not amount to evidence that plaintiff was endangered by the crowd later, upon having entered the premises. As a result of the foregoing, both Regal s motion for summary dismissal, and Columbia and Sony s cross-motion for the same relief must be granted. Columbia and Sony should be dismissed -5- [* 7] from the case on the additional ground that there is no evidence that they had anything to do with crowd control within the premises. Columbia and Sony appear to have had security personnel outside the theatre, not inside. Conclusion Accordingly, it is hereby ORDERED that the motion brought by Regal Cinemas, Inc., s/h/a Regal Entertainment Group, for summary judgment dismissing the complaint and all cross-claims as against it is granted, and the complaint is dismissed as to this defendant; and it is further ORDERED that the cross-motion brought by defendants Columbia Pictures Industries, Inc., s/h/a Columbia Pictures, and Sony Pictures Entertainment Inc. for summary judgment dismissing the complaint and all cross-claims as against them is granted, and the complaint is dismissed as to these defendants. ORDERED that the Clerk is directed to enter judgment accordingly. The foregoing constitutes the decision and order of this Court. FILED DEC 2 6 2013 ENTER: COUNTY CLERK S OFFICE NEW YORK fk Dated: December 16,20 13 New York, New York (.. ... Hon. Shlomo S. Hagler, J.S.C. -6-

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