Xin Li v Mercy Med. Ctr.

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Xin Li v Mercy Med. Ctr. 2018 NY Slip Op 34387(U) January 5, 2018 Supreme Court, Nassau County Docket Number: Index No. 601689/17 Judge: Randy Sue Marber Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 601689/2017 FILED: > NASSAU COUNTY CLERK 01/11/2018 10:34 AM NYSCEF DOC. NO. 114 o- RECEIVED NYSCEF: 01/11/2018 SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. RANDY SUE MARBER JUSTICE ___________________x TRIAL/IAS PART 9 • i I XINLI, · Index No.: 601689/17 Mot. Seq. No ... 01, 03 Motion Date ... 10/18/17 Plaintiff, -againstMERCY MEDICAL CENTER, NORTH SHORE UNIVERSITY HOSPITAL AMBULANCE . SERVICES, JONATHAN ERISMAN, M.D., TIMBERL Y BOOKER, M.D., CORNELLIA HA, M.D., DR._ VINDA, SUSAN KRAUTHAMER, R.P.A., KESHA THORPE, R.N., L. CRACI, R.N., . "JOHN/JANE' ASHA, R.N., and JOHN DOE MEDICAL PROVIDERS #1-10, and KJSS CORP. d/b/a KASHI SUSHI AND STEAKHOUSE, Defendants: --------------------'---xPapers Submitted: Notice of Motion (Mot. Seq. 01}.................... x Affirmation in Opposition ..................... ·....... x Reply Affirmation ................. _. ................... x Notice of Motion (Mot. Seq. 03) ....... : .............. x Affirmation in Opposition .......... .-....... ·.. ;; ........ x Affirmation in Opposition ..... ·......... : ............. x Reply Affirmation ......................... ,,: .... : ..... x Sur-Reply Affirmation ................... :...... : ....... x Reply Affirmation to Sur-Reply ........... ; ......... x [* 1] 1 of 21 j I -~ .. FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM INDEX NO. 601689/2017 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 01/11/2018 Upon the foregoing papers;· th~ motion (Mot. Seq. 01) by the· De(endants·,. · ' MERCY MEDICAL CENTE~ ("MERCY'')' and KESHA THORPE, R.N. ("THORPE"), seeking an Order purs:uant to CPLR §3211' (a)(5), _CP~R-§321 l(a)(7), and CPLR §205(a),·. dismissing the Plaintiffs ·complaint ·and all clafms asserted against them; and th:e motion ·:1 (Mot. Seq. 03) by the Defendant, KJSS CORP, d/b/aKASHI SUSHI AND STEAKHOUSE ("KASHI"), seeking an Order pursuant to CPLR §3212, granting summary judgment and dismissing the Plaintifr s Complaint, are deci4ed as_ hereinafter provided. personal In this action, the Plaintiff alleges that on May 6, 2013, he sustained -· . -: . -~ injuries when he was caused to slip and faUon water in the bathroom ofKASHI r~staurant . ( ... •• u • .:· ......:: • • ' located at 222 Sunrise Highway,. Roc~vilie ~~ntre, New York. The Plaintiff was transported by ambulance from KASHI to_ the Emergency Department at MERCY where . . . he received care and treatment on the night. of May 6, ·2013 and early morning hours of I . . - ' ..· • -~ .• ·_r;, . ,• May 7, 2013. Thereafter, he was-transferred to Winthrop University Hospital during the ·,; < . early morning hours of May 7, .2013: ,.;'! The procedural history qf th'ts· cas~. is· pertinent. . . ~ The Plaintiff originally . commenced an action in federal court ~gaiilst. KASHI on February 10, 2015, asserting a ~ . cause of action for negligence based on KA SHI' s _fail~e i~ keep the premises in reasonably .· . . . . . ~ safe condition and/or creating a hazardous· c~ridition wh•~h ,ca~sed his fall and resµltant -.... injuries [See Exhibit "A" to Defendant' KASHlj ~ Notici of MotionJ. . The Defend ant, KASHI, interposed an answer ·in the federal .action on or about September 14, 2015. " . . . ?" Depositions of all parties were held and disc~~ery was completed. fallowing completing . 2 , .;:· [* 2] ' .P: • 2 of 21 .. FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM INDEX NO. 601689/2017 i ·-."r: NYSCEF DOC. NO. 114 RECEIVED NYSCEF: '01/11/2018 ·· l j of discovery, KASHI filed a motion for summary judgment.in the federal action. While said motion was pending, the federal_. action against KASHI was discontinued without prejudice to refile in State Cou~. . . The Plaintiff originally filed a medkal malpi:actice action against the moving annexed to· Defendants, MERCY and THORPE,.on NoveJJ1.ber·.9, 2015- [See Exhibit ."B" . . . .. ~ Defendant MERCY's Notice of Motion]. Jt is und.isputed that November 9, 2015 was the . . . . . . . . .,. ;·· ....,_' last day to file an action against these .Defeqdants .b.ased ort the. . applicable statute of . . . ' . ~ . . limitations within which to file a medical malpractice·. claim. · Th~ Proposed ·sumnions. . . . . . . . - . '. . . - ~ '"· filed by the Plaintiff against MERCY and TH.OR.PE wa~ rejected by_ the federal court and a new Proposed Summons was .not filed by the Plaintiff until :.November 29, 2015. [See. . ... . ..... . . ~ . .. ~ Federal Court Docket annexed as Exhibit '~A•~ to PefencJant MERCY's Notic"e of Motion]. Pursuant to Federal Rules· of Civii Proce'4:ure ("F~CP") Rule 4, counsel for.the .l~l~~ntiff . - mailed copies of the Sum~ons ·and· Complaint together with a Waiver oi Service form to ·-,1!- be completed by MERCY and_ THORPii:,. It i_s updisputed that .MERCY never returned - . the Waiver of Service ~orm; and that the Plaintifrs counsel did not effectuate serv~ce of • :r . - the Summons and Complaint upon MERGY until April 2016, which .was concededly . . . . ·: . . ~ outside the 120-day time period allowable_to serve same. Following service upon MERCX, the Plaintifrs counsel als~ neglected to· file· the Affidavit of Service with the federal court . ' .. - . . pursuant to applicable federal rules ... 3 [* 3] 3 of 21 !l .!~ _j INDEX NO. 601689/2017 FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 01/11/2018 . -:; The Defendant, THOJU>E, . howev~r;,. ti~el~. -compl_eted. and retQrned_ th~ f'" ' Waiver of Service form. ;The_ PlaJntifr:s cou~sel al~o -~eglected to file the· Waiver with the federal court until May 10, 2016. ·At a pre-motion confer~rice .in. federal court- in or about_ June 2016, the moving Defendants, MERCY and THO~E, sought permi~·si~nto file a motion to dismiss jurisdiction ~ue to the the case for lack or' subject jurisdiction~· and for lack of p'ersonal .. ._: ,. . Plaintifr s failure to prope~ly ~nd tigiely 'sefve the "complaint: pursuant to FRCP Rule 4. -~ . . ' By Order dat~d June 29, 2016,_the fed~ral coqrt directed limited discovery on the threshold ';a· issue of subject matter jurisdiction; follo\.\li:rig which the parties were directed to-confer ~nd propose a briefing schedule. N~tably,' the federar··-court · further directed. that "the . .' . . remaining grounds for dismissal proposed by d~fendants: ... . shall be held. in abeyance,. with . all parties' rights reserved, including the. right to. m~ke . . • a motion after the Court· issues a . . • ' 1 - ruling on subject matter jurisdiction>• f See· Fede;af. Court Order date4 J~ne 29, 2016, :· . . . {.. - ... ~ . . annexed to Defendant MERCY's Notice·ofMotiqn as_Exhi~it "C"]. Following the_ coinpletic:~n·· o( ~isc~very · ~n tfie ·issue of subject. matter jurisdiction, all parties agreed to dis~ontinue_ the ·actio'n;,without prejudice to recommence the action in State ·court pursuat?-t to ;CPLR .~2qs· [See· Stipulation dated Novemb~r 15, ;'· . ~ 2016, annexed to Defendant MERCY' s Notice pf Mot~on as. Exhibit "D"]. The specific terms of the Stipulation' are noteworthy.· The ~artie~ stipulat~d ~nd agreed that the. Plaintiff .. . . . . . . . .... · . will discontinue the federal actio~ on the following ,c9nditions: ' J .l • That upon discontinuance, all_parties will have all the rights that the parties would have had the .case been dismissed for 4 [* 4] 4 of 21 .,· FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM INDEX NO. 601689/2017 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 01/11/2018 ' I lack of subject matter jurisdiction by order. of this· Court,· which includes all of.the rights -granted,and allowed.to all parties by New York's CPLR §205; . . ' • That execution of this stipulation is·not to be construed as defendants' concessfon.that plaintiff is granted a_pd allowed.· · rights under CPLR-.§205~ and· • That defendants reserve any and all rights to move for · . . appropriate relief 'upon r~commericem~nt\:>f the action in state court. · [Id.] Following removal from fedtral court iri or about Jc1nuary 2017, the Plaintiff . . commenced the instant action on Febr~ary 10, 2017, na~ing essen.ti_ally the same medical\ provider defendants that were named in 'the federaj action·. [See ~u~m~ils. and Complaint,· dated February 10, 2017, annexed to. Defendap.t i,IBRCY.'s Notice· of Motion as _Exhibit • ·!'.· • •• - - . "E"]. In lieu of answering, the D~fendiriits, MERCY and THORPE,· filed'. the instant . . . . ·. . .. ..:. motion to dismiss base~ on the ~xpiratfon ·of;th~ si~t~t~{of lim~tations c1nd ._inapplicab~lity . . . of the tolling provisions afforded by CPLR . .· - . . . . §205. · . . . On July 6;.2017,th~ Plaintiffs qo4,~sel filed an:Am_ended Complaintwhi~h, · - . inter alia, added the Defendant, ·KASBI [See<Ver,ified ·Am~nded Complaint~ annexed to • • •. • • • • I • • • • ,_.,.:: • •,/' Defendant KASHI's Notice .of. Motion . as·Exhi~it'fE'l On July 7, 2017, the Defendant; . . - . . .• . . KASHI, interposed an Answer .a~d the instant ~um~ary j4dgm'ent motion followed: MERCY and THORPE's Motfon t<, J)is;,iiS$ Counsel for the moving-Defendants, MERCY and THORPE, asserts that, . . .. . . ~~ pursuant to FRCP Rule 4(m), the Plaintiff was requJred to serve the movants within 120 . . -· . . .. : :. days of the filing of the Compl~int. Rule 4(~) further provides for dismissal ·of an action 5 [* 5] 5 of 21 " INDEX NO. 601689/2017 FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM ~- NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 01/11/2018 without prejudice if service of the summons and complaint is not timely made. However, . . . . . if good cause is shown, _th~ federal . c~urt "shall extend the time for service for an . . appropriate period." Fed. R. Civ. P. 4(in). As-to Defendant THORPE, counsel asserts that completing and returning a Waiver ~of-Service pursuan~ to FRCP Rule 4(d)(5) does not waive any objection.- to personal' jurisdiction or venue. Counsel .further avers that pursuant . . _. _ ( to Rule 4( d)( 4), filing of the Waiver ·obviates the need for filing proof of service_ and Rul¢ 4 applies as if the Summons··and Complaint "had b~en- served at the time of filing the ~·. .... '. waiver". Counsel for the, mo:ving Oefendahts arg~es that_,. based upon. th~ Plaintiff's failure to comply with the provisi9ns. of~RCP R¥1.e .4 ·in:fai~ing to timely ~erve. ME~CY and in failing to timely file the- THORPE jurisdiction was ne~er obtained : . ' Waiver, personal . . . __. ,. -~" , T- over the moving Defendants·. · As such, coµ.nsel submits t~~t. since_ service _was never effectuated over the movin~ Defendants iri the federal ~our(a¢tion, the Pl~iptiff ~ioes not . - • • 't· ' ' ' get the benefit of CPLR §205. In this regarcl~ counsel posits that the predicate for applying . . . :_ .,. CPLR §205(a) is that the terminated_ action· must ·have_·b~e~ "timely commenced" which ... . ';,, . ,.. '· -. -. . ~ . . . necessarily mandates that personal.jurisqi~tion ~\fas obt~ined o~er the defendant(s) _~ithin • the limitations period. • ri • · ..,,. .• In opposition, the ·Plaintiff proffers ·irrelevant · arguqients concerriirig the . . ' . '/ ' . ' ~ . difference between treatment of case~ .pre-1992 and those filed the_reafter the -1992. _ . - amendment which changed the '-'com~encement".of anijCt!On to filing process as opposed to service of process.-.The P·lairitiffprirparily rests.his opposition on the assertion that the • [* 6] • 6 of 21 •• .I- • ...._. • INDEX NO. 601689/2017 FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 01/11/2018 prior federal action was timely 'COmmepced sipc~_the federa.l ·complaint wa~ filed within • • • I ·,i._ .- the limitations period. Sp~cific~lly;the Plaintiff a~sert~. that the -~equireme.nts of CPLR . . . ~ . §205(a) have been mt:t _because the plaintiff timely coi:nmenced the.action by- filing the . . ~ ,I summons and complaint and the··case \Ya_s· not dismissed forthe failure to serve process on · , . .·· ' . the defendants, but rather: was dismiss~d-(or Jack of subj~cfm.atter jurisdiction. . . , _.. . . . . . . Counsel for the· Plaintiff furthei"submits that:this CoU:rt_ should undergo an . . . .. .. analysis of whe_ther the Plaintiff woul~ ·have been granted ari" exiension of time to serve the federal complaint pursuant to,R.ule 4(rn). In so considering, the Plaintiff's counsel asserts · . . .• -:-· . '·' that good cause exists for l~te servic~ of pio~ess upon the. Def~ndant, MERCY, 'Tg]iv~n plaintiff's counsel ongoing experience with defend~nts .p_tovidirig waivers, in fact,- n~ver . having an experience otherwise,· counsel _believed a: waiver was f(?rt.hcoming, particularly . - _, .. -~ ., when another defendant repres,ented · b_y t~e · sam~ firm .p~ovided _one." [See Plaintiff's Counsel's Affirmation in Oppo~iiion at ,r,ri6-17). - . . ' - ... Whi~e the Plaintiff's counsel asserts tp.at a-request . . ·- . WB;S made in the federal· action to deem service made upon.MERCY- on April 19, 2016 ~'as good service", ho such. letter is annexed to the Plaintiff's opposition pape~ herein: Rath~r,. the Plaintiff's counsel" . . , . -: only proffered a letter dated March_2~, 2016 wherein it was stat~d that.only the D~fendant~ . 0 THORPE, returned a signed Wctiver (alth~~gh it was yet to -~e .file4), -~n<l -~s ·_to the :_ remaining Defendants, that "the· ~rtdersig~ed will arrange_· for_ pe~sonal service ,at the expense of the defenda°:ts":;- [See Exhibit "_G".: annexed' to Plairitiff's Affirmation ih . Opposition]. In any event, . ·-~he ··Plaintiff"s · qounsel asserts that. a subsequent-Iette_r was. . :S." 7 [* 7] 7 of 21 I INDEX NO. 601689/2017 FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 01/11/2018 ~. -= submitted in opposition to the moving .Defendants' re9u~st"to fi_le a· m:otion for, inter. alia, lack of personal jurisdiction, where_in t_h_e Plaintiff asked the federal court to deem the April 19, 2016 service upon MERCY "good seryice." [See Plaint1frs Affirmation in Opposition · at ifl6]. Moreover' counsel. for the Plaintiff. urges .this- ·court to find. that the federal. ~ . . . - .· ~ court would have allowed for l~te service despite·_ lac_l< of good caus·e shown under t"lie criteria generally considered by federal courts, includin& (i) whether the applicable statute of limitations would bar the filed action; ~ (ii) whether the defendant notice of the . ~. had actual . -~ claims asserted in the compl~int;·(iii)-whetherthe de~end4nt attempted to co_nceal the defect in service; and (iv) .·:whether the defehdant wou14 ·be prejudiced by. allowing late service. - -- - - . , . .. Notably' the- Plaintiff concedes. that . MERCY ·wa~ not·. served in the prior . . . ' . ' federal action until approximately·. si~ (6}"'weeks after·the· 120-day limitations period· . .. ... . .. ·· . . . ' expired. The Plaintiff further concecles _that THORPE's·e%ecuted waiver was un~imely. . . ·, . .,. . . filed on May 10, 2016, but d~im~ ;th~biu~h do_es not affect tp.e validity qf seryi~e. · ! - - ' Lastly,. the Plaintiff's counsel asks· this Court to. apply ,<a disability toll . . . '• . . . . , . ·~ ( . . . . . pursuant to CPLR §208 based o~ the·Plaintiff-s purported· disability at the :time the cause . . of action accrued. In support, the Plaintiff prnffers - ; ·- . th~ expert affirrruition of.David. J. . . ' ~ Bronster, M.D., who opines, within a reasonable degree o~ m~dical-certainty, that when the Plaintiff left MERCY, he was stifferi_ng. from neu~pfogical dysfunction [See Bronster . - . . - Affirmation, annexed to Plaintiff's Affirmation· in· Opposition as Exhibit "H"]. · . Di. .. , Bronster opines that the.-Plaintiff's ·deficits inclu~e, inte_r- a(ia: significant cognitive 8 _,.. [* 8] 8 of 21 ;•·. ... ·. INDEX NO. 601689/2017 FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 01/11/2018 deficit; memory loss; greatly compromised ability to communicate in writing as he is able to write some things but not others; responding to questions in a slow manner; and inability to provide his address or write his address in English or Chinese upon examination [Id.]. The remainder of Dr. Bronster's affirmation largely opines as to the PlaintifPs physical ., deficits. It is noteworthy that Dr. Bronster does not conclude that the Plaintiff is totally incapacitated. Legal Analysis When an action that has been timely commenced is later dismissed, CPLR §205 (a) contains a savings clause which provides that, even if the St&tute of Limitations has or will run, a new action may be commenced within six months of the termination, except if the termination was "by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits ... ·provided that the new action would have been timely commenced at the time of the commencement of the prior action." The requisite predicate for the application ·of this section 1s that the terminated action must have been "timely commenced". The crucial factor in determining timely commencement is whether personal jurisdiction was obtained within the period of limitations [Markojf v. South Nassau Comrnuni_ty Hosp., 61 N.Y.2d 283 (1984)]. Here, it is undisputed that the Plaintiff failed to effectuate service within 120 days of filing the Complaint in the terminated federal action. This holds true for both moving Defendants, MERCY and THORPE. As to MERCY, no attempts were made to 9 [* 9] 9 of 21 INDEX NO. 601689/2017 FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 01/11/2018 effectuate service within the limitations period, nor did Plaintiff file an application to enlarge the time to serve. As to THORPE, service was never effectuated as the executed Waiver was not filed with the Court within the limitations period. Thus, personal jurisdiction was never obtained over the moving Defendants.· Based on the record before this Court, it is clear that the Plaintiff failed to show good cause for neglecting to timely serve the Summons and Complaint in the prior action. A delay in service of a complaint resulting from the mere inadvertence, neglect, or mistake of a litigant's attorney does not constitute "good cause" for extending the 120 period for service pursuant to F~CP Rule 4(m). [AIG Managed Market Neutral Fund v. Askin Capital Management, L.P., 197 F.R.D. 104 (S.D.N.Y.2000)]. Moreover, the Court declines to make the significant assumption that the federal court would have exercised its discretion in permitting the Plaintiff additional time to serve, particularly where, as here, the Plaintiff neglected to make any attempts to serve within the applicable time period, failed to move to enlarge the time to serve, and failed to · proffer a reasonable excuse for the delay. Indeed, the Proposed Summons which was filed with the Complaint on the very last day to commence a medical malpractice action against the moving Defendants was rejected by the federal court and not refiled until approximately twenty (20) days later. Given the nature and extent of the Plaintiffs failures to properly and timely effectuate service within the limitations. period, this Court finds it unlikely that ' . the federal court would have excused such deficiencies,. and we decline to excuse them here. 10 [* 10] 10 of 21 FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM NYSCEF DOC. NO. 114 INDEX NO. 601689/2017 RECEIVED NYSCEF: 01/11/2018 The case of Southern Wine & Spirits of Am., Inc. ~- Impact Envtl. Eng'g, PLLC, relied upon by the Plaintiff, is inapposite as it involved a prior action that was not L considered a dismissal on the merits. [104 A.D.3d 613 (1st Dept. 2013)]. In that case, the appellate court afforded plaintiffs the benefit of CPLR § 205(a) because the prior action was dismissed due to the plaintiffs' failure to comply with a condition precedent contained in the parties' subject agreements. To the contrary, the issue presented here .is whether the Plaintiff timely and properly effectuated service of the Summons and Complaint in the federal action. The case of Bishop v. Uno Pizza, 188 Misc.2d 142 (New York County 200 I), also relied upon by the Plaintiff, likewise fails to support the Plaintiff's arguments. In fact, the Bishop case is strikingly similar to the case at bar and supports dismissal of the Plaintiff's case. In Bishop, the court found that the plaintiff could not avail the savings provision of CPLR §205 because service had never been effectuated in the prior federal · action. There, the plaintiff requested the defendant to waive service by mailing the notice pursuant to FRCP Rule 4(d), just as the Plaintiff's counsel did here.· However, the defendant in Bishop did not execute -such waiver and in order to acquire personal jurisdiction over the defendant, the plaintiff was required to effect service in the normal manner pursuant to FRCP Rule 4. The Bishop court found that jurisdiction was never acquired over the defendant in the prior federal action, and hence, was not commenced within the meaning of CPLR §205. The Bishop court held that "[t]he mailing of a request 11 [* 11] 11 of 21 INDEX NO. 601689/2017 FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 01/11/2018 for a waiver of service of process i"s ... not a means of acquiring jurisdiction:'~ [Id. at 145; see also Meneely v. Hitachi Seiki USA, 175 A.D.2d 111 (2d Dept. 1991)]. Lastly, counsel's attempt to claim that the Plaintiff was under a disability at the time the cause of action accrued is unavailing. As correctly noted by the moving Defendants' counsel in reply, difficulty in functioning is not sufficient to establish insanity for purposes of the disability toll under CPLR §208. The Plaintiff testified at an examination before trial _in the federal action against KASHI where was able to provide his address, living circumstances, length of time he resided at his address, names of family members, ages of his children and his educational background. Further, the Plaintiff was able to protect his legal rights by retaining an attorney, conferring with his attorney prior to his deposition, and engaging in other pre-trial discovery. As such, the Court finds Dr. Bronster's Affirmation conclusory and insufficient to warrant applicability of a disability toll. Here, just as in Bishop, the Plaintiff is not pemiitted to invoke the protections of CPLR §205 to save the time-barred claim. Accordingly, the motion by the moving Defendants, MERCY and THORPE, is GRANTED. KASHI's Summary Judgment Motion: At the outset, the Court will not consider the Plaintiffs Sur-Reply Affirmation as same was submitted without permission of the Court. Any responsive papers to the Plaintiffs improperly filed Sur-Reply will also not be considered as moot. 12 [* 12] 12 of 21 INDEX NO. 601689/2017 FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 01/11/2018 The Defendant, KA SHI, moves for summary judgment based on Plaintiffs failure to identify what caused him to fall~ and based on evidence that the Plaintiff fell due to intoxication, rather than some act or omission of the Defendant. Counsel for KASHI claims that there is no evidence in the closed record from which a jury could infer that the Plaintiff slipped on water. Moreover, KASHI' s counsel submits that KASHI did not have actual or constructive notice of the alleged wet condition in the restroom. In support of KASHI's motion, counsel proffers the deposition testimony of the Plaintiff which was conducted in the federal ac~ion [See Plaintiffs Deposition Transcript annexed to Defendant KASHI's Notice of Motion as Exhibit "G"]. The Plaintiff persistently testified that he had no memory of the incident and no recollection of what occurred that evening. · The Plaintiff attested that he was told by friends that he was · injured as a result of being beat up by someone in ,the restroom [Id. at pp. 33-15]. KASH!' s counsel also submits the deposition testimony of Mae Ling Yam, a manager at KASHI on the date of the incident [See Ling D~position Transcript annexed to Defendant KASHI's Notice of Motion as Exhibit "H"]. Ms. Ling testified with respect to cleaning protocol and procedure, explaining that the bussers check the bathroom about every half hour to make sure it is dry, and that paper towels and soap are stocked [Id. at p. 39]. In the event the bathroom floor· is wet, the bussers use dry mops to clean the bathrooms and a floor fan with a caution sign to speed up the drying process [Id. at p. 117]. Ms. Ling also personally inspects the worr{en's restroom and sends other employees· to check the condition of the men's restroom. She recalled sending ''Andy" to the men's 13 [* 13] 13 of 21 FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM NYSCEF DOC. NO. 114 INDEX NO. 601689/2017 RECEIVED NYSCEF: 01/11/2018 restroom prior to 6:00 p.m. on the date ofthe incident [Id. at pp. 40-41]. The bussers are only required to inform Ms. Ling that they checked the bathroom if a problem arises [Id.· at pp. 42-43]. Ms. Ling first learned of the incident when she was approached by nonparty, Simon Wong, who informed her that someone was on the bathroom floor [Id. at pp. 5354]. She proceeded to the bathroom where she found the Plaintiff lying on the floor near the urinal. Ms. Ling put her finger to the Plaintiff's nose to check if he was breathing and observed that he was nonresponsive. Ms. Ling then left the bathroom and went to the Plaintiffs table to inform the other guests in his party that the Plaintiff was on the floor. She asked one of the Plaintiffs friends to check on the Plaintiffwhile she called "911" [Id. at pp. 53-54, 75-78, 81-85]. Ms. Ling also testified as to the condition of the bathroom floor. She observed that there was no water on the floor. Ms. Ling testified that if it was wet at the time of the incident, she would have noticed because she was sitting on the restroom floor for a portion of the time near the Plaintiff while wearing a skirt. Ms. Ling also testified that the Plaintiff's friends did not want him to be removed and sent by ambulance to the hospital. Per Ms. Ling, they insisted that the Plaintiff was just intoxicated and would be okay. Ms. Ling observed the Plai~tiff's friends arguing with the paramedics who were trying to remove. him from the restaurant also insisting that the Plaintiff.was just intoxicated, needed some air and would be fine [Id. at pp. 87-90]. 14 [* 14] 14 of 21 FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM NYSCEF DOC. NO. 114 INDEX NO. 601689/2017 RECEIVED NYSCEF: 01/11/2018 Counsel for the Defendant, KASHI, also proffers the deposition testimony of nonparty witness, Simon Wong, who witnessed the Plaintiff's fall [See Wong Deposition Transcript, annexed to Defendant KASHI's Notice of Motion as Exhibit "I"]. Mr. Wong testified that the Plaintiff and his group were seated two (2) seats away from him. At Mr. Wong's deposition, counsel for KASHI showed the witness relevant portions of video surveillance from the night of the incident. Mr. Wong identified himself on the video walking towards the bathroom just prior to the incident, and shortly thereafter walking towards the front desk to inform KASHI management what had occurred [Id. at pp. 24-26]. Mr. Wong then identified himself and Ms. Ling on the video surveillance walking together towards the restroom. As to the incident itself, Mr. Wong testified that when he entered the restroom, he observed the Plaintiff standing against the urinal leaning towards the right against a panel or wall used to cover the urinal. He then observed the Plaintiff fall backwards. Mr. Wong further testified that the floor was not slippery at the time of the Plaintiff's fall; nor did he observe any water on the floor when he entered the restroom [Id. at pp. 44-45]. He also believed the Plaintiff was intoxicated because his face was very flushed. Based on the .foregoing, counsel for KASHI argues that summary judgment is warranted as the evidence adduced establishes nothing more than a possibility that the Plaintiff's fall was caused by· a wet condition on the floor. It is further asserted that without evidence on causation, ·the jury would necessarily engage in impermissible speculation as to the cause of the fall and as t~ whether the _fall proximately caused the 15 [* 15] 15 of 21 FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM NYSCEF DOC. NO. 114 INDEX NO. 601689/2017 RECEIVED NYSCEF: 01/11/2018 Plaintiffs claimed injuries. Counsel cites to a legion of cases where summary judgment was granted to the defendant under similar circumstances. Of note is an Appellate - Division, Second Department case in which the plaintiffs complaint was dismissed where the plaintiffs memory problems prevented her from identifying the cause of her fall [Hartman v. Mountain Valley Brew Pub, Inc., 301 A.D.2d 570 (2d Dept 2003)]. _ Alternatively, counsel argues that KASHI did not create or have actual or constructive notice of any water on the bathroom floor that allegedly caused the accident. In opposition, counsel for the ·Plaintiff submits the affidavit of nonparty witness, Lu Kang, sworn to in the State of Massachusettsl [See Kang Affidavit, sworn to on October 19, 2016, annexed to Plaintiffs Opposition as Exhibit "A"], Preliminarily, the Court notes that the Affidavit is not in admissible form as it fails to contain a Certificate of Conformity pursuant to CPLR § 2309. Notwithstanding the procedural defect in the Affidavit, the Court will consider the substantive statements contained therein. Ms. Kang attests that on the day of the incident she was dining at KASHI restaurant with the Plaintiff and two (2) others; Chris Xu and Y anq i Chen. At some point prior to the Plaintiffs fall, Chris Xu used the men's restroom and returned to the table. Sometime thereafter, the Plaintiff went to use the restroom and did not return. She attests that a female restaurant employee ran to their table and informed them that the Plaintiff fell in the bathroom. Ms. Kang anci Chris Xu then went to the restroom and observed the ' The Court notes that the Kong Affidavit erroneously refers to the Commonwealth of Massachusetts as a "State". · 16 [* 16] 16 of 21 FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM NYSCEF DOC. NO. 114 INDEX NO. 601689/2017 RECEIVED NYSCEF: 01/11/2018 Plaintiff on the floor. Ms. Kang attests that she "almost sprained (her] ankle when [she] bent down to [her] knees to reach [the Plaintiff] because the floor was wet and slippery. She further attests that, upon seeing the Plaintiff and the wet floor, Chris Xu "acknowledged that the wetness on the floor was present when he went to the restroom earlier." [Id. at ifl2]. Ms. Kang denied that anyone in their group was intoxicated, but admitted that they had a bottle of wine with dinner. She also denied telling anyone that the Plaintiff was intoxicated; not did she hear Chris Xu or Yanqi Chen tell anyone that the Plaintiff was intoxicated. Counsel for the Plaintiff concedes that the Plaintiff had no recollection of the circumstances of his fall. It is claimed that the Plaintiff was also unable to provide responses to most questions that required more than just a "yes" or "no" response, which counsel claims is "consistent with neurological deficit that [the Plaintiff] suffered as a result of the fall" based upon Dr. Bronster's affirmation [See Plaintiffs Affirmation in Opposition atif32]. Counsel relies on the cases of Peterson v. P. Ballantine & Sons, 205 N.Y. 29 (1912) and Lynn v. Lynn 216 A.D.2d 194-(lst Dept. 1995), for the proposition that where it can be shown that a plaintiff is unable to be a witness on his own behalf ~ue to the injuries sustained as a result of the accident, courts permit greater latitude in drawing an inference of negligence. As to the surveillance video, the Plaintiffs cpunsel confirms the timeline of events, which, in pertinent part, reveals that Chris Xu used the restroom at 7:18_p.m. and the Plaintiff went to the restroom at 7:31 p.in. 17 [* 17] 17 of 21 FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM NYSCEF DOC. NO. 114 INDEX NO. 601689/2017 RECEIVED NYSCEF: 01/11/2018 The Plaintiffs counsel argues that the moving Defendant failed to establish its prima facie entitlement_ to summary judgnient based upon, inter alia, the Defendant's failure to address the allegation in the Plaintiffs complaint that KA SHI employees misled the paramedics who arrived at the scene by providing false and unfounded information that the Plaintiff was intoxicated thereby causing a delay in the Plaintiff obtaining proper medical treatment from the paramedics and from the Defendant, MERCY. Counsel further posits that, in any event, the Plaintiffs evidence proffered in opposition creates genuine issues of material facts that would permit a reasonable jury to infer that (i) there I • was liquid accumulated on the b_athrooin floor; (ii) the Plaintiffs clothes were wet at the location where the liquid was accumulated; and (iii) KASHI's employees had actual notice where they are shown on the video surveillance entering the restroom immediately prior to the Plaintiffs fall. While acknowledging that Ms. Kang's statement that she heard Chris Xu claim that the liquid on the floor he observed immediately following the Plaintiffs fall was the same liquid he had observed thirteen (13) minutes earlier is hears~y, the Plaintiffs counsel makes the attenuated argument that Xu's statement is either a spontaneous declaration, an excited utterance, or no"t being offered for the truth of the matter asserted. In this regard, counsel posits that "Xu's stat~ment is being used to show that the restaurant had notice of the wet.floor - not that [the Plaintiff] slipped on the liquid." [See Plaintiffs· Affirmation in Opposition at 149]. 18 [* 18] 18 of 21 FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM NYSCEF DOC. NO. 114 INDEX NO. 601689/2017 RECEIVED NYSCEF: 01/11/2018 On a motion for summary judgment, the Court's function is to decide whether there is a material factual issue to be tried, not to resolve it (Sillman v. Twentieth Century Fox Films Corp., 3 N.Y.2d 395,404 [1957]). Aprimafacie showing of a right to judgment is required before summary judgment can be granted to a movant (Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986t Winegradv. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985]; Fox v. Wyeth Labs., Inc., 129 A.D.2d 611 [2d Dept 1987]; Royal v. Brooklyn Union Gas Co., 122 A.D.2d 132 [2d Dept. 1986]). The Defendant, KASHI, established its primafacie entitlement to judgment as a matter of law by demonstrating that none of its ac~s or omissions were a .substantial cause of the events which produce~ the Plaintiffs injury. [Derdiarian v. Felix Contr. Co., 51 N.Y.2d 308 ( 1980)]. In this matter, there are several possible causes of the Plaintiffs fall, one or more of which the Defendant, KASHI, is not responsible. As such, the Plaintiff cannot defeat the Defendant's motion for summary judgment. The Plaintiff also failed to raise an issue of fact as to whether KASHI had actual or constructive notice of the alleged defective condition. Indeed, Chris Xu used the men's restroom shortly before the Plaintiffs fall and did not notify KASHI management of the purported wet condition of the floor. There exists no admissible evidence in the record before this Court that establishes the Defendant, KASHI, had any notice, actual or constructive, of the alleged defective c,ondition with sufficient time to remedy same. 19 [* 19] 19 of 21 • NASSAU COUNTY CLERK 01/11/2018 10:34 AM FILED: NYSCEF DOC. NO. 114 INDEX NO. 601689/2017 RECEIVED NYSCEF: 01/11/2018 Moreover, the Plaintiffs request that this Court allow a lower burden of proof due to the Plaintiffs alleged neurological deficits must be denied based on Lynn v. Lynn, a case cited by the Plaintiffs counsel. The facts presented here are far more compelling for dismissal than the facts in Lynn where the Plaintiff there suffered from amnesia as to the events surrounding her fall [Lynn, 216 A.D.2d at 194]. The appellate court in Lynn reversed the trial court's denial of summary judgment and dismissed the plaintiffs complaint despite her inability to testify as to what happened, how it happened, or what caused it to happened [Id. at_ 195]. The appellate court found that a lesser burden of proof was not warranted based on the plaintiffs failure to establish that the defendant's negligence was a substantial cause of the injury.causing event. [Id.]. Just as in Lynn, in this matter, the Court similarly finds that summary judgment is warranted in favor of the Defendant, KASH!. Accordingly, it is hereby ORDERED, that the motion (Mot. Seq. 01) by the Defendants, MERCY MEDICAL CENTER and KESHA THORPE, R.N., seeking an Order pursuant to CPLR §3211 (a)(5), CPLR §321 l(a)(?), and CPLR §205(a), dismissing the Pl~intiffs Complaint and all claims asserted against them, .is GRANTED; and it is further ORDERED, that the motion (Mot. Seq. 03) by the Defendant, KJSS CORP. d/b/a KASH! SUSHI AND STEAKHOUSE, seeking an Order pursuant to CPLR §3212, granting summary judgment and dismissing the Plaintiffs Complaint, is GRANTED; and it is further 20 [* 20] 20 of 21 FILED: NASSAU COUNTY CLERK 01/11/2018 10:34 AM NYSCEF DOC. NO. 114 INDEX NO. 601689/2017 RECEIVED NYSCEF: 01/11/2018 ORDERED, that the remaining parties .shaU appear for the scheduled Certification Conference before the Ho~. Randy Sue Marber on April 12, 2018 at 9:30 !!:!!!· This constitutes the. decision and Order of thfcourt. Dated: Mineola, New York January 5, 201_8 [!:]~~ ~~-~ HON. RAND)' SUE MARBER, J.S.C. ENTERED JAN 11 2018 HON. fWDf stE MARBER NASSAU COUNTY .. COUNTY CLERK'S OFFICE 21 [* 21] 21 of 21

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