Hassan v Barnes & Noble Booksellers, Inc.

[*1] Hassan v Barnes & Noble Booksellers, Inc. 2013 NY Slip Op 51771(U) Decided on October 24, 2013 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 24, 2013
Supreme Court, Kings County

Jenna Hassan an infant by her Father and natural guardian, NAEEM HASSAN and NAEEM HASSAN, Individually, Plaintiffs,

against

Barnes & Noble Booksellers, Inc., d/b/a, BARNES NOBLE BOOKSELLERS CAFÉ and STARBUCKS COFFEE COMPANY and STARBUCKS CORPORATION, Defendants.



18354/09



Attorney for the plaintiffs

Meyerson & Levince, LLP

1040 Hempstead Tpk

Franklin Square 11010

516-354-1570

Attorney for the defendants

Leahey & Johnson, PC

Steven Martin, Esq.

120 Wall Street, Suite 2220

New York, New York 10005

212-269-7308

Francois A. Rivera, J.

By amended notice of motion filed on December 20, 2012, the defendants Barnes & Noble Booksellers Inc, (hereinafter "Barnes & Noble"), Starbucks Coffee Company, and Starbucks Corporation (hereinafter "the Starbucks defendants") have jointly moved pursuant to CPLR 3212 for an order: (1) granting summary judgment in their favor on the issue of liability and dismissing the complaint, or (2) in the alternative, dismissing the complaint solely as against the Starbucks defendants.

Plaintiffs have opposed the motion.

[*2]BACKGROUND

On July 22, 2009, the plaintiffs commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's Office. The instant action is for damages for personal injuries. Plaintiffs' complaint and bills of particulars alleges, among other things, the following salient facts. On January 28, 2008, Jenna Hassan (hereinafter " the injured infant") and her parents Naeem Hassan and Nesrein Hassan were inside a Barnes & Noble Café that sold Starbucks products located at 267 7th Avenue in Brooklyn, New York (hereinafter the subject premises). Plaintiffs contend that the defendants failed to employ adequately skilled and trained employees. In particular, the defendants' employees served the plaintiffs an unreasonably hot cup of tea with an improperly secured lid. The defendants also negligently failed to remedy or caused and created a dangerous condition, namely, the use of an uneven and unsteady table was present at the subject premises which caused the hot tea to spill and burn the injured infant.

Barnes & Noble interposed a verified answer dated August 26, 2009. By a joint amended answer dated September 27, 2010, Barnes & Noble and the Starbucks defendants joined issue. On October 22, 2012, plaintiffs filed a note of issue.

MOTION PAPERS

Defendants' motion papers consist of an amended notice of motion, an affirmation of their counsel and twelve annexed exhibits labeled A through L. Exhibit A consists of the summons and verified complaint. Exhibit B is Barnes & Noble's verified answer and disclosure demands. Exhibit C is an order of this court dated March 5, 2010, which denied without prejudice the Starbucks defendants' pre-answer motion to dismiss the complaint. Exhibit D is the amended joint answer of all the defendants. Exhibit E is the note of issue. Exhibit F is plaintiffs' bill of particulars. Exhibit G is plaintiffs' supplemental bill of particulars. Exhibit H is the deposition transcript of Naeem Hassan, the injured infant's father. Exhibit I is the deposition transcript of Nesrein Hassan, the injured infant's mother. Exhibit J is the deposition transcript of Theresa Fitzgerald (hereinafter Fitzgerald), a manager of Barnes & Noble Café operation. Exhibit K is the deposition transcript of Joe Doheney (hereinafter Doheney), the Starbucks defendants Regional Operations Specialist. Exhibit L is the affidavit of Dennis J. O'Neil (hereinafter O' Neil), the director of operations for Barnes & Noble, which refers to four annexed exhibits labeled A through D. Exhibit A contains a copy of the lease agreement for the subject premises by Seventh Avenue Retail Associates, LLC to Barnes & Noble as tenant. Exhibit B is a copy of the supply agreement between the defendants. Exhibit C is described as the master distributer agreement by which Barnes & Noble purchased Starbucks products from U.S. Food Service, Inc. Exhibit D is the distribution agreement between Barnes & Noble and The Wasserstrom Company.

In opposition to defendants' motion, plaintiffs have submitted an affirmation of their counsel and twelve annexed exhibits annexed labeled A through M. Exhibit A is Naeem Hassan's affidavit. Exhibit B is Neserin Hassan's affidavit. Exhibit C is a copy of the Starbucks defendants' notice of motion to dismiss dated October 28, 2009 (hereinafter the first motion). Exhibit D is the March 5, 2010 court order denying the first motion.. Exhibit E is is a copy of the Starbucks defendants' notice of motion to dismiss dated April 1, 2010 (hereinafter the second motion). Exhibit F is a copy of this court's order dated June 25, 2010, which converted the [*3]motion to dismiss to a motion for summary judgment, and authorized the plaintiffs to supplement the affirmation in opposition. Exhibit G is a copy of this court's order dated August 20, 2010 which permitted the defendants to withdraw the second motion with leave to renew it within 30 days. Exhibit H a letter from Michael P. Berry, the president of Barnes & Noble to Frank Graves, the National Account Executive and a document described as a supply agreement between Barnes & Noble Inc. and Starbucks Corporation. Exhibit I is described as the fourth amendment to the supply agreement. Exhibit J contains a copy of plaintiffs' verified complaint dated July 9, 2009 and their supplemental bill of particulars dated July 29, 2011. Exhibit K is the deposition transcript of Nesrein Hassan. Exhibit L is the deposition transcript of Naeem Hassan. Exhibit M contains defendants' response to plaintiffs' discovery demands.

The defendants replied with an affirmation of their counsel.

LAW AND APPLICATION

Procedural Issues with the Instant Motion

Plaintiffs contend that the instant motion is untimely and an impermissible successive summary judgment motion. The relevant procedural history shows that the Starbucks defendants made a pre-answer motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7) (hereinafter the first motion). By order dated March 5, 2010, the first motion was denied without prejudice to renew within thirty days because the documents submitted in support of the motion were not in admissible form. Thereafter, the Starbucks defendants renewed the motion within the thirty days time frame (hereinafter the second motion). By order dated June 25, 2010, the court notified the parties that the second motion was converted to a motion for summary judgment and adjourned the matter to August 20, 2010 for further submissions. By order dated August 20, 2010, the Starbucks defendants were granted leave to withdraw the second motion without prejudice and with leave to renew within thirty days. Thereafter, the defendants filed the instant motion for summary judgment.

Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause (Coccia v Liotti, 2012 WL 6028893 [2nd Dept 2012]). Additionally, in the absence of a court order or rule to the contrary, a motion for summary judgment must be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown" (see CPLR 3212[a]) Rule 13 of the Uniform Civil Trial Rules of the Supreme Court, Kings County, now Rule 6 of Part C, provides that no motion for summary judgment may be made more than 60 days after filing a Note of Issue ... except with leave of the Court on good cause shown" (see e.g. Weitzner v Elazarov, 189 Misc 2d 646 [2001]).

The instant motion was filed on May 15, 2013, which is within 6o days of the date of the filing of the note of issue and is therefore, timely. Furthermore, the defendants second motion was made pursuant CPLR 3211, not CPLR 3212, and was withdrawn without prejudice. Consequently, the instant motion is the defendants' first fully submitted motion for summary judgment and therefore is not an impermissible successive summary judgment motion.

Summary Judgment as to Barnes & Noble

A motion for summary judgment may be granted only when there is no doubt as to the [*4]absence of any triable issue of material fact (Kolivas v Kirchoff, 14 AD3d 493 [2nd Dept 2005]). "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" (Celardo v Bell, 222 AD2d 547 [2nd Dept 1995]).

A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Napolitano v Suffolk County Dept. of Public Works, 65 AD3d 676 [2nd Dept 2009]). The prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings (Miller v Village of E. Hampton, 98 AD3d 1007 [2nd Dept 2012] citing Foster v Herbert Slepoy Corp., 76 AD3d 210, 214 [2nd Dept 2010]). 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 material issues of fact (Alvarez, 68 NY2d at 324).

Generally, the elements of a negligence claim are the existence of a duty, a breach of that duty, and damages proximately caused by the breach of duty (see Lapides v State, 37 AD2d 755 [2nd Dept 2008]). Furthermore, under New York common law a landowner has a duty to maintain his or her premises in a reasonably safe condition, taking into account all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (Alnashmi, 89 AD3d 10 [2nd Dept 2011], Walsh v Super Value, Inc., 76 AD3d 371 [2nd Dept 2010]). Thus, liability for a dangerous or defective condition on real property is generally predicated on ownership, occupancy, control or special use of the property (Alnashmi, 89 AD3d 10 [2nd Dept. 2011]).

All the defendants have jointly moved for summary judgment in their favor on the basis that no defendant breached a duty purportedly owed to the plaintiffs. However, the Starbucks defendants have also moved in the alternative for summary judgment on the distinct ground that they had no duty to the plaintiffs because they did not own, occupy or control the subject premises.

There is no dispute that Barnes & Noble was leasing and operating a business at the subject premise at the time of the injured infant's accident.[FN1] Therefore, Barnes & Noble had an affirmative duty to maintain the subject premises in a reasonably safe condition and the burden of avoiding the risk of foreseeable injury to the plaintiffs.

Essentially, the plaintiffs claim that Barnes & Noble negligently served the plaintiffs an unreasonably hot tea in a cup with an unsecured or improperly secured lid. They further claim, as set forth within their supplemental bill of particulars, that Barnes & Noble negligently allowed a dangerous and defective condition, namely, an uneven table to be used by its customers on the subject premise. Nasrein Hassan testified at her deposition that she noticed that the table that she placed the tea which burned her child, the injured infant, was wobbly. [*5]

It is well established that where the product has an inherently dangerous attribute, the law imposes liability only when the product's danger is not reasonably contemplated by the consumer and the product is unreasonably dangerous for its intended use (Fung-Yee Ng v Barnes & Noble, Inc., 308 AD2d 340 [1st Dept 2003], see also Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 479 [1980], Huppe v Twenty-First Century Rests. of Am. Inc., 130 Misc 2d 736 [Broome County Sup Ct 1986]. Barnes & Noble asserts that it did not breach its duty of care to plaintiffs in its preparation, service, and sale of the hot tea.

While Barnes & Noble admits that hot tea is an inherently dangerous product, it argues that on the date of the accident the tea served to plaintiffs was not unreasonably hot, or "unreasonably dangerous for its intended use." In support of its contentions, it relies upon the deposition testimony of Theresa Fitzgerald (Fitzgerald) and Naeem Hassan. Fitzgerald testified that Barnes & Noble's general practice is to brew tea products in water dispensed from the equipment, which regulates the temperature of the water to approximately 200 degrees. Naeem Hassan testified that he intentionally purchased hot tea and was aware that his wife intended to consume it as a hot beverage.

Barnes & Noble also contends that the plaintiffs failed to submit evidence that it caused and created, or had actual or constructive notice of the allegedly defective table. "As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merits of its claim or defense" (see, Mennerich v Esposito, 4 AD3d 399 [2nd Dept 2004]).On its motion for summary judgment, the defendant is required to make a prima facie showing affirmatively establishing that the defendant neither created nor had actual or constructive notice of the dangerous condition that caused the plaintiff's accident (Mitchell v Consolidated Edison, 27 AD3d 430 [2nd Dept 2006], citing Curzio v Tancredi, 8 AD3d 608 [2nd Dept 2004]; see also, Baines v G & D Venturs, Inc., 64 AD3d 528 [2nd Dept 2009]). A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected (Williams v SNS Realty of Long Is., Inc., 70 AD3d 1034, 1035 [2nd Dept 2010], quoting Hayden v Waldbaum, Inc., 63 AD3d 679, 679 [2nd Dept 2009]).

In order to disprove constructive notice of a defective condition on its premises, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of the occurrence (Feola v City of New York, 102 AD3d 827 [2nd Dept 2013]). Barnes & Noble offered no evidence as to when the table in question was last cleaned or inspected relative to the time of the plaintiffs accident. It therefore failed to meet its prima facie showing of lack of notice of the dangerous or defective condition. As such, the Court need not consider the sufficiency of the plaintiffs' opposition papers or of the defendants' reply (Pleasant v M & Lenny Taxi Corp., 94 AD3d 1072 [2nd Dept 2012]) citing Huges v Cai, 31 AD3d 385-386 [2nd Dept 2006]). Furthermore, the Court need not address plaintiffs' arguments concerning the legal principals of concurrent and intervening cause and res ipsa loquitor.

Summary Judgment as to the Starbucks Defendants

The defendants seek in the alternative, dismissal of the complaint as to the Starbucks defendants based on their lack of occupancy, ownership, control or special use of the subject premises. In support of this branch of the motion they have submitted, among other things, the [*6]affidavit of O'Neil, the director of Barnes & Noble's operations and the deposition transcripts of Fitzgerald, a manager of its Café operation and Doheney, the Starbucks defendants Regional Operations Specialist.

O'Neil's affidavit was used to admit the following agreements that Barnes & Noble entered into and which were in effect at the time of the injured infants accident: its lease for the subject premise with Seventh Avenue Retail Associates LLC as landlord; the Supply Agreement with Starbucks Coffee Company; the Master Distributor Agreement with U. S. Foodservice; and the Distribution Agreement with the Wasserman Company.

The lease agreement demonstrates that the Starbucks defendants do not own, occupy or lease the subject premises. The Supply Agreement demonstrates that the Starbucks defendants are vendors who supply some of its products to Barnes & Noble. It also demonstrates that the Starbucks defendants are contractually responsible for the costs of providing a trainer and training booklet for the Starbucks Training Program to advise on the method for serving Starbuck's products. Further, the O'Neil affidavit avers from personal knowledge that the trainers supplied by the Starbucks defendants do not conduct their training at the Barnes & Noble cafes. Doheney's deposition testimony avers, among other things, that Barnes & Noble does not serve or carry any teas from the Starbucks defendants.

In sum, the defendants have submitted evidence in admissible form establishing the following facts: the Starbucks defendants do not own, occupy or control the subject premise; they have no supervisory control over the manner or method that Barnes & Noble employees serve their tea products; they do not supply and have no supervisory control over the purchase or maintenance of the tables and other furniture used in the subject premise; they conduct limited training of Barnes & Noble employees on the manner of serving the Starbucks defendants' products and that training was not conducted on the subject premises; Barnes & Noble does offers some products obtained from the Starbucks defendants and does post signs containing the Starbuck logo. However, those products do not include tea.

Therefore, the defendants have made a prima facie showing that the Starbucks defendants are not liable in negligence because they owe no duty to the plaintiffs. Having met this burden by offering sufficient evidence to demonstrate the absence of any duty to the plaintiffs the burden then shifts to the plaintiffs to raise a material triable issue of fact.A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (see Geffner v North Shore University Hosp., 57 AD3d 839, 842 [2nd Dept 2008]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).

Plaintiffs' opposition papers are insufficient to raise a triable issue of fact. Plaintiffs' assertions that Starbuck's owed a duty are conclusory and unsupported by the evidence. The concept of "control is the test which measures generally the responsibility in tort of the owner of real property" (Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10 [2nd Dept 2011]). Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property (see, Usman v Alexander's Rego Shopping Center, Inc., 11 AD3d 450 [2nd Dept 2004]). Therefore, the complaint must be dismissed as to Starbucks defendants only. [*7]

Accordingly, the defendants' motion is granted to the extent that the complaint is dismissed as to Starbucks defendants only. The remainder of defendants' motion is denied.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.

Enter Forthwith:

J.S.C. Footnotes

Footnote 1: Barnes & Noble's control was established through its own submissions of an affidavit by Dennis J. O'Neil who was employed by Barnes & Noble as the director of Cafe Operation at the time of the accident. O'Neil's affidavit contains a copy of the signed lease agreement between Seventh Avenue Retail Associates, LLC and Barnes & Noble, naming Barnes & Noble as the sole tenant of the premises.