Quantano v Institute of Culinary Educ., Inc.

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Quantano v Institute of Culinary Educ., Inc. 2019 NY Slip Op 33054(U) October 16, 2019 Supreme Court, New York County Docket Number: 152880/2015 Judge: Debra A. James 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. [*FILED: 1] NEW YORK COUNTY CLERK 10/16/2019 02:52 PM NYSCEF DOC. NO. 75 INDEX NO. 152880/2015 RECEIVED NYSCEF: 10/16/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DEBRA A. JAMES IAS MOTION 59EFM Justice ---------------------------------------------------------------------------------X INDEX NO. AUDREY QUANTANO, 152880/2015 MOTION DATE Plaintiff, 10/29/2018 MOTION SEQ. NO. 001 - vDECISION + ORDER ON MOTION THE INSTITUTE OF CULINARY EDUCATION, INC. and CHRIS GESUALDI, Defendants. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 50, 51, 52, 53, 54, 55, 56, 57, 58,59,63,64,65,66,67,68,69, 70, 71, 72, 74 JUDGMENT-SUMMARY were read on this motion to/for ORDER Upon the foregoing documents, it is ORDERED, that the motion of defendants Institute of Culinary Education, Inc. and Chris Gesualdi for summary judgment dismissing the complaint is denied. DECISION Plaintiff Audrey Quantano commenced this action to recover damages for personal injuries she sustained on March 17, 2013 when hot stock spilled on her during a class taught by defendant Chris Gesualdi Inc. (Gesualdi) at defendant Institute of Culinary Education, (ICE) (together, defendants). Defendants now move, pursuant to CPLR 3212, for summary judgment dismissing the complaint. 152880/2015 QUANTANO, AUDREY vs. INSTITUTE OF CULINARY Motion No. 001 1 of 12 Page 1of12 [*FILED: 2] NEW YORK COUNTY CLERK 10/16/2019 02:52 PM INDEX NO. 152880/2015 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 10/16/2019 Background Plaintiff is a former culinary student at ICE. Prior to attending ICE, plaintiff had taken culinary classes at the French Culinary Institute (FCI) in the 1990s and had received a culinary certificate from New York Food and Hotel Management (NYFHM) in Plaintiff decided to attend ICE to learn new trends and 1995. reeducate herself prior to opening her own cafe. Gesualdi was one of her instructors. At training her on deposition, how to plaintiff handle programs at FCI and NYFHM. hot testified objects in For example, that the she received kitchen in the she had been taught to use towels to alert others in the kitchen "that this was a hot object" and that she "would never be told to remove a hot pot from a stove". Plaintiff explained, "[y]ou wait until the product is cooled, before you remove the hot pot from the stove; that was the part of the training". She expressed that Gesauldi never discussed kitchen safety during her program at ICE. On the day of the accident, plaintiff arrived at the classroom early to help prepare the students' Gesualdi directed the group to stations before class began. which she was included "Alejandro" and another female student, assigned, which to transfer the contents of a 10-gallon pot of hot rabbit stock on the stove into smaller containers. When the stock would not pass through a spigot on the side of the pot, plaintiff suggested "that we had to remove 152880/2015 QUANT ANO, AUDREY vs. INSTITUTE OF CULINARY Motion No. 001 2 of 12 Page 2of12 [*FILED: 3] NEW YORK COUNTY CLERK 10/16/2019 02:52 PM NYSCEF DOC. NO. 75 INDEX NO. 152880/2015 RECEIVED NYSCEF: 10/16/2019 the pot, down to the floor". Plaintiff testified that Gesualdi told them to complete the task manually by removing "the pot from off the stove, instructions, After Gesualdi gave them these onto the floor". he left the classroom. Plaintiff later denied devising the plan of sliding the filled pot off the stove. Plaintiff admitted that she had handled similarly-sized pots in her other Alejandro, together, culinary jobs and at FCI and NYFHM. She told "we needed to sort of slide the pot from the stove, but that we had to use our side towel to lift the pot with handles". Plaintiff testified that she and Alejandro "were just slowly trying to work the pot off the stove" and that they were sliding the pot forward as she had "requested", when she saw Alejandro pick his side up. "Alejandro dropped the Plaintiff was holding her end when pot" and the stock spilled on her. Plaintiff sustained second and third degree burns to her right arm, right leg, torso and face. Plaintiff testified that Gesualdi was not in the classroom to direct them on how to remove the stockpot from the stove. She also testified that the stock should have been left to cool in the pot for at least eight hours or more before being transferred per ICE's textbook. Although she had received prior training on how to deal with hot objects in a kitchen, plaintiff testified that she was aware the hot pot should not have been moved based on her prior experience. However, plaintiff maintained that despite her 152880/2015 QUANTANO, AUDREY vs. INSTITUTE OF CULINARY Motion No. 001 3 of 12 Page 3of12 [*FILED: 4] NEW YORK COUNTY CLERK 10/16/2019 02:52 PM INDEX NO. 152880/2015 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 10/16/2019 prior culinary training, instructions, as a she was a "student student; that's how following all I went in" to ICE. Plaintiff also testified that when she confronted Gesualdi about "classroom order" one week prior to the accident, Gesualdi responded by announcing to the class that "he was in charge, that, at some point, would that if people didn't listen to -- The Institute get rid of those people starting trouble or any trouble". At his deposition, Gesualdi testified that he had been employed as a full-time culinary instructor at ICE from 2005 to 2016 and is licensed by New York State to teach. Gesualdi testified that between July and October 2005, he sat through 100 classes taught by other instructors at ICE before he could begin teaching. verbal ICE relied on food safety videos, printed handouts, and instructions to teach students about kitchen safety. Gesualdi explained that dry towels were always used to move hot sheet trays, grab hot pot handles, or hold pots with hot liquid in them. Gesualdi also explained that students should not "try to do a job that's like too heavy" and that they should not "take any risks". Gesualdi testified that plaintiff was one of 10 to 12 students in a meat fabrication class. participation. Students were graded on their class On the day of the accident, there was a 15- or 20- gallon pot of lamb stock that had been simmering overnight on a 152880/2015 QUANT ANO, AUDREY vs. INSTITUTE OF CULINARY Motion No. 001 4 of 12 Page 4of12 [*FILED: 5] NEW YORK COUNTY CLERK 10/16/2019 02:52 PM INDEX NO. 152880/2015 NYSCEF DOC. NO. 75 stove. RECEIVED NYSCEF: 10/16/2019 Gesualdi testified that hot stocks were strained through fine mesh strainers and, unless they were to be used right away, the strained stocks were cooled on ice "so they' re not danger zone and nobody gets sick". On this occasion, directed Alejandro and "Mariuxsol," a female student, the stock before class began. Plaintiff was Gesualdi to strain not present when Gesualdi gave Alejandro and Mariuxsol these instructions. was told that the spigot on the stockpot was clogged, responded, the floor" in the When he Gesualdi "we would have to take it off the stove and put it on and use a containers. ladle to transfer the stock into smaller Gesualdi explained that taking the pot off the stove required two people, and that he had personally performed that task prior to the day of the accident. He told Alejandro and Mariuxsol that he and Alejandro would move the pot off the stove together. At that time, Gesualdi had been writing notes on an easel and standing three feet to four feet from the stove. He asked for 30 seconds to finish his notes before he could help move the stockpot. He maintained that he never let female students volunteer to help move that pot. stock was previously the 18th stock made warned stockpot off the the stove. students Gesualdi testified that the lamb in that to Gesualdi take class, care and that when testified that he had moving the he was writing on the easel when he saw plaintiff at the stove. still Mariuxsol had gone to retrieve a smaller pot, and Alejandro was holding onto 152880/2015 QUANT ANO, AUDREY vs. INSTITUTE OF CULINARY Motion No. 001 5 of 12 Page 5of12 [*FILED: 6] NEW YORK COUNTY CLERK 10/16/2019 02:52 PM INDEX NO. 152880/2015 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 10/16/2019 the pot with plaintiff next to him. Gesualdi explained that he was standing at the easel when he "heard the pot hit the floor" a He saw that plaintiff's clothing was wet after the minute later. accident. The Parties' Contentions Defendants argue that the primary assumption of risk doctrine bars plaintiff's claim as the testimony shows it was plaintiff who suggested moving the hot stockpot to the floor. Furthermore, defendants assert that cooling the stock before straining it was contrary to the directions states that hot cooled. in the textbook used at stock should be strained for ICE, which immediate use or Leaving the stock in the pot to cool also would have been dangerous under the guidelines issued by the United States Department of Agriculture. Plaintiff opposes the motion, and argues that defendants were negligent in directing her to move the stockpot before the stock had cooled, high and in directing plaintiff to move a "pot that was too too heavy," and classroom unsupervised. surgeon, place, photographs ICE's allowing She submits a of incident in the Gesualdi report classroom where report, and with straining the stock on the leave the from her plastic the accident two-page a handwritten statement from Alejandro Mejia, tasked to took notarized, one of the students day of the accident. Alejandro stated Gesualdi "directed me and the women in my team" 152880/2015 QUANT ANO, AUDREY vs. INSTITUTE OF CULINARY Motion No. 001 6 of 12 Page 6of12 [*FILED: 7] NEW YORK COUNTY CLERK 10/16/2019 02:52 PM INDEX NO. 152880/2015 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 10/16/2019 to move a 15- or 20-gallon pot of boiling chicken stock from the Alejandro stated that Gesualdi never helped stove to the floor. move the stockpot on that day, when stock was made, and stockpot in prior classes. that or on any of the preceding days female students had moved the Alejandro indicated that Gesauldi left the classroom after he told them to move the pot. He stated that plaintiff "lost her grip because she could not handle the weight of the pot and the pot fell and the chicken stock spilled all over her". Plaintiff McLean also (McLean), a tenders an professional affidavit from chef culinary and expert Timothy instructor. McLean opines that Gesualdi violated standards and practices in the industry by leaving the students unsupervised and unattended. In addition, McLean opines that it is the better practice to dip a smaller pot into the stockpot to strain the stock, moving the stockpot to the ground, higher than waist level. rather than especially when the stove is McLean further opines that the stock should have been left to cool on the stove until it reached 135 degrees. Discussion It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. 152880/2015 QUANT ANO, AUDREY vs. INSTITUTE OF CULINARY Motion No. 001 7 of 12 Page 7of12 [*FILED: 8] NEW YORK COUNTY CLERK 10/16/2019 02:52 PM INDEX NO. 152880/2015 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 10/16/2019 Med. Ctr., 64 NY2d 851, 853 [1985]). The motion must be supported by evidence in admissible form (see Zuckerman v City of New York, 4 9 NY2d 55 7, 5 62 [ 198 0] ) , and by the pleadings and other proof such as affidavits, depositions and written admissions 3212) . (see CPLR The "facts must be viewed in the light most favorable to the non-moving party" 503 [2012] (Vega v Restani Constr. Corp., 18 NY3d 499, [internal quotation marks and citation omitted]). Once the movant meets its burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact citing Alvarez v Prospect Hosp., "[f] ailure to make summary judgment] [a] prima 68 NY2d 320, facie showing quotation marks and citation [1986]). The [of entitlement requires a denial of the motion, the sufficiency of the opposing papers" [internal 324 (id., (Vega, regardless of 18 NY3d at omitted, to 503 emphasis in original]). Under the primary assumption of risk doctrine, "one is deemed to have assumed, as a voluntary participant certain risks occasioned by athletic or recreational activity, and to the extent of such an assumption, any legally enforceable duty to reduce the risks of Republic, 8879 such Inc., [2008] activity is 51 AD3d 246, limited" 247 (Roberts v [1st Dept 2008], [internal citations omitted]). Boys & Girls affd 10 NY3d "[I]n its most basic sense it 'means that the plaintiff, in advance, has given his . consent to relieve the defendant of an obligation of conduct 152880/2015 QUANT ANO, AUDREY vs. INSTITUTE OF CULINARY Motion No. 001 8 of 12 Page 8of12 [*FILED: 9] NEW YORK COUNTY CLERK 10/16/2019 02:52 PM INDEX NO. 152880/2015 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 10/16/2019 toward him, arising and to take his chances of injury from a known risk from what (Turcotte v Fell, the defendant 68 NY2d 4 32, is 4 38 to do [ 198 6] , Keeton, Torts§ 68, at 480-481 [5th ed]). freely accepts a known risk or leave undone'" quoting Prosser and Thus, "a plaintiff who 'commensurately negates any duty on the part of the defendant to safeguard him or her from the risk'" (Custodi v Town of Amherst, 20 NY3d 83, 87 [2012], quoting Trupia v Lake George However, Cent. application School Dist., of doctrine the 14 NY3d 392, "depend [ s] 395 [2010]). upon whether, under the particular circumstances, the plaintiff may be said to have freely and knowingly consented to assume qualifying activity" (Trupia, 14 NY3d at 396 n) . received " 'a direction by a superior to do the risks of a Where a plaintiff the act' and 'an economic compulsion or other circumstance which equally impels' compliance with the direction," despite the obvious risks, the defense is assumption of the risk unavailable (see Benitez v New York City Bd. of Educ., 73 NY2d 650, 658 [1989] [internal quotation marks and citations omitted]). The risk of sustaining injury from contact with a hot liquid that has recently been boiled is apparent (see Griffin v Starbucks Corp., 52 AD3d 250, 250 [1st Dept 2008] [awarding damages where the plaintiff was injured from hot coffee that had spilled on her left foot] ) . It is evident that plaintiff was fully aware of the risk of potential injury, given her prior training regarding how 152880/2015 QUANT ANO, AUDREY vs. INSTITUTE OF CULINARY Motion No. 001 9 of 12 Page 9of12 [*FILED: 10] NEW YORK COUNTY CLERK 10/16/2019 02:52 PM INDEX NO. 152880/2015 NYSCEF DOC. NO. 75 to RECEIVED NYSCEF: 10/16/2019 handle hot objects in experience maneuvering City of New York, a commercial kitchen similarly-sized stockpots 66 NY2d 270, 278 [1985] and her (see prior Maddox v that a [stating plaintiff's awareness of the risk must be "assessed against the background of the skill and experience of the particular plaintiff"]). Ordinarily, applies to recognition (Custodi, the doctrine "particular that such of athletic pursuits 20 NY3d at 88, primary and have assumption recreative 'enormous quoting Trupia, of risk activities social in value'" 14 NY3d at 395]). In this instance, plaintiff was not engaged in such an activity, and neither defendants nor plaintiff have furnished the court with any legal authority where the doctrine has been applied to accidents that occur in culinary school. Where a plaintiff was not participating in an athletic or recreational activity, the primary assumption of the Riccio v Kid Fit, risk doctrine Inc., 126 is generally inapplicable AD3d 873, 873 [2d Dept (see 2015] [concluding that the doctrine did not apply where the plaintiff sustained burns from a lit sterno canister underneath a chafing tray she was carrying] ) . Nevertheless, the doctrine has been applied to bar recovery for injuries sustained during nonsporting and nonrecreational activities (see Watson v State of New York, 77 AD2d 871, 871 [2d Dept 1980], affd 52 NY2d 1022 [1981] [finding that the plaintiff assumed the risk of injury by assaulting his 152880/2015 QUANT ANO, AUDREY vs. INSTITUTE OF CULINARY Motion No. 001 10 of 12 Page 10of12 [*FILED: 11] NEW YORK COUNTY CLERK 10/16/2019 02:52 PM NYSCEF DOC. NO. 75 INDEX NO. 152880/2015 RECEIVED NYSCEF: 10/16/2019 instructor]; Szkatulski v Thruway Inn, Inc., 21 Misc 3d 1115[A], 2006 NY Slip Op 52641[U], *2-4 [Sup Ct, Erie County 2006], affd 41 AD3d 1195 [4th Dept 2007] [finding that the 21-year old plaintiff assumed the risk of injury when the 151 proof rum she lit in her mouth as part of a trick caused her hair to catch fire]). One element necessary to invoke the primary assumption of risk doctrine is the plaintiff's voluntary consent 73 NY2d at 658). (see Benitez, As applied herein, defendants have presented two vastly different versions of the events immediately preceding the Plaintiff testified that she was directed to move the accident. stockpot to the floor by her superior, whereas Gesualdi testified that he informed plaintiff that he would move the stockpot with Alejandro's assistance. Plaintiff also testified initially that it was her suggestion to move the stockpot, was her idea. Alejandro's notarized statement appears to support plaintiff's version of events. that options then denied that it There is no evidence to suggest other than moving the stockpot were available to plaintiff as her group was tasked with transferring the hot stock into small containers (see Hanson v Sewanhaka Dist., 155 AD3d 702, 704 [2d Dept 2017] "chose to play basketball from Cent. High [stating that the plaintiff a number of options"] ) . Furthermore, the incident took place in a classroom setting Scavelli v Town of Carmel, 131 AD3d 688, [stating that "the compulsory nature of 152880/2015 QUANTANO, AUDREY vs. INSTITUTE OF CULINARY Motion No. 001 11 of 12 Sch. 690 [2d Dept (see 2015] class activities Page 11 of 12 [*FILED: 12] NEW YORK COUNTY CLERK 10/16/2019 02:52 PM NYSCEF DOC. NO. 75 INDEX NO. 152880/2015 RECEIVED NYSCEF: 10/16/2019 precludes an assumption of risk defense"]; accord Stoughtenger v Hannibal Cent. School Dist., 90 AD3d 1696, 1697 [4th Dept 2011]). Thus, a question of fact exists as to whether plaintiff's participation was entirely voluntary (see Salvieterra v Havekotte, 273 AD2d 218, 219 [2d Dept 2000] [finding it proper to charge a jury with assumption of risk and inherent compulsion where the plaintiff had been directed by her employers to clean an oven with defective gloves]), particularly when ICE students receive grades based on their participation. Moreover, plaintiff and Alejandro stated that Gesualdi was not present in the classroom when the accident occurred, but Gesauldi testified that he was less than four feet from plaintiff when the accident occurred. Such contrary testimony raises questions of credibility that cannot be resolved on a motion Chachanover & for summary Rosado, LLP, judgment (see 160 AD3d 475, Encalada 476 v McCarthy, [1st Dept 2018]). Therefore, based on this record, the court is constrained to deny the motion. 10/16/2019 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED 0 DENIED SETILEORDER INCLUDES TRANSFER/REASSIGN 152880/2015 QUANTANO, AUDREY vs. INSTITUTE OF CULINARY Motion No. 001 12 of 12 D OTHER D REFERENCE Page 12of12

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