Rodriguez v Maya Café & Cantina, Inc.

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Rodriguez v Maya Café & Cantina, Inc. 2021 NY Slip Op 33502(U) June 1, 2021 Supreme Court, Dutchess County Docket Number: Index No. 51305/19 Judge: Maria G. Rosa 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. 2019-51305 FILED: DUTCHESS COUNTY CLERK 06/02/2021 02:25 PM NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 06/01/2021 SUPREME NEW YORK SUPREME COURT COURT OF THE THE STATE STATE OF NEW YORK COUNTY OF DUTCHESS DUTCHESS COUNTY Present: Present: Maria G. Rosa, Rosa, Justice Justice Hon. Maria ST ACY L. RODRIGUEZ, STACY RODRIGUEZ, Plaintiff, Plaintiff, DECISION DECISION AND AND ORDER ORDER Index No. 51305/19 Index No. 51305/19 -against-againstMAY A CAFE A, INC. and MA YA CAFE & CANTIN CANTINA, CAFE MAY A EXPRESS, MAYA EXPRESS, INC., INC., Defendants. Defendants. The following pape:s were for summary judgment followingpape:s were read read on Defendant's Defendant's motion motion for summaryjudgmen~. NOTICE OF MOTION NOTICE MOTION AFFIRMATION IN SUPPORT SUPPORT AFFIRMATION EXHIBITS A - K EXHIBITS AFFIRMATION AFFIRMATION IN OPPOSITION OPPOSITION AFFIDAVIT IN OPPOSITION OPPOSITION AFFIDAVIT EXHIBITS A - C EXHIBITS REPLY REPLY AFFIRMATION AFFIRMATION This is a negligence negligence action action in which which Plaintiff Plaintiff seeks seeks damages damages for injuries injuries sustained sustained when when she was hit by a New York. The a car while while crossing crossing Route Route 9 in Fishkill, Fishkill, New The incident incident occurred occurred on May May 5, 2016 at approximately p.m. after left a Cincci being held approximately 10:00 p.m. after Plaintiff Plaintiffleft Cinco De Mayo Mayo celebration celebration being held at the Maya Maya Cafe & & Cantina Cantina restaurant. restaurant. Defendant Defendant Maya Maya Cafe Cafe & & Cantina, Cantina, Inc: ("Defendant") ("Defendant") moves moves for summary judgment. summary judgment. of a motion motion for summary summary judgment carries the the initial initial burden of tendering tendering The proponent proponent of judgment carries burden of sufficient admissible admissible evidence evidence to demonstrate. demonstrate the absence absence of of a material material issue issue of of fact as a matter matter of of sufficient Alvarez v. Prospect Prospect Hospital, Hospital, 68 NY2d (1986). If If a movant movant has met met this this threshold threshold law. Alvarez NY2d 320, 324 (1986). burden, defeat the motfon motion the opposing opposing party must present existence ·of of a triable triable issue issue of of fact. burden, to defeat party must present the existence Zuckerman v. New York, 49 NY2d (1980). In deciding·a deciding-a motion motion for summary· summary New York, NY2d 557, 562 (1980). See Zuckerman judgment, "the trial trial court court must must afford afford the party opposing the motion motion every every inference inference which which may be judgment, "the party opposing properly drawn presented, and the facts must properly drawn from the facts facts presented, must be considered considered favorable favorable to the nonmovant." Szczerbiak Szczerbiak v. Pilat, Pilat, 90 NY2d (1997). NY2d 553 (1997). . nonmovant." [* 1] 1 of 5 FILED: DUTCHESS COUNTY CLERK 06/02/2021 02:25 PM NYSCEF DOC. NO. 69 INDEX NO. 2019-51305 RECEIVED NYSCEF: 06/01/2021 support of of the the motion motion Defendant Defendant has has submitted submitted copies copies of of the the pleadings, pleadings, deposition deposition In support transcripts, photographs photographs and and a police police accident accident report. report. Plaintiff Plaintiff testified testified at her her deposition deposition that that she transcripts, arrived at the restaurant restaurant with with a friend friend at approximately approximately 6:00 6:00 p.m. p.m. There There was was a Cinco Cinco De Mayo Mayo arrived celebration happening happening both both inside inside and and outside outside of of the restaurant. restaurant. In the parking parking lot there there was was music music celebration there were were tents tents with with venders venders selling selling food and alcohol. alcohol. Plaintiff Plaintiff asserts asserts that that she drank drank two two and there sangrias while while waiting waiting for a table table between between 6:00 6:00 p.m. and 7:00 7:00 p.m. p.m. She She drank drank one one more more sangria sangria sangrias while eating eating dinner dinner with with her her friend friend between between 77:00 and 9:00 9:00 p.m. p.m. Plaintiff Plaintiff states states that that her her friend friend :00 p.m. and while approximately 9:00 9:00 p.m. p.m. but but planned planned to pick pick her up later later that that evening. evening. Plaintiff Plaintiff then then spent spent an left at approximately hour outside outside dancing dancing and and socializing. socializing. At approximately approximately 10:00 p.rn. p.m. she called called her her friend friend to pick pick her hour friend then then called called back back and and said said that that the police police outside outside the restaurant restaurant told told her her that that she was was up. Her friend allowed to pick pick Plaintiff Plaintiffupup in the restaurant restaurant parking parking lot. They They informed informed her her that that she had had to pick pick not allowed parking lot adjacent adjacent to the Horne Home Depot Depot across across Route Route 9. Plaintiff Plaintiff contends contends that that she then then her up in a parking walked to the comer comer where where there there was a traffic traffic light light and and that that she had had the intention intention of of crossing crossing Route Route walked states that that she observed observed numerous numerous people people crossing crossing Route Route 9 at that that time time in different different 9. She states locations, but that she was alone when she proceeded to cross at the traffic light. Plaintiff claims was alone when proceeded cross the traffic light. Plaintiff claims locations, but that waited for the the light light to turn tum red and then then crossed crossed the three three northbound northbound lanes lanes of of traffic traffic to the the she waited median in the center center of of Route Route 9. She remembers remembers stepping stepping off off the median median into into the the southbound southbound lane lane median then waking waking up in the middle middle of of Route Route 9. Matthew Matthew McNamara McNamara testified testified at his his deposition deposition that that and then driving southbound southbound on Route Route 9 and slowed slowed in the vicinity vicinity of of the the Maya Maya Cafe Cafe because because he was driving numerous people people were were outside outside and crossing crossing Route Route 9. He asserted asserted that that as he continued continued driving driving his numerous vehicle struck struck Plaintiff Plaintiff as she was was crossing crossing Route Route 9. Plaintiff Plaintiff asserts asserts that that prior prior to crossing crossing Route Route vehicle speak with with police police officers officers who who were were standing standing on the the periphery periphery of of the the Cinco Cinco De Mayo Mayo 9 she did not speak celebration. She claims claims that that she was was not intoxicated intoxicated and and felt "perfectly "perfectly fine" fine" when when she decided decided to celebration. Route 9. cross Route foregoing is sufficient sufficient to demonstrate demonstrate Defendant's Defendant's primafaeie entitlement to summary summary primafacie entitlement The foregoing judgment matter oflaw. oflaw. Plaintiff Plaintiff asserts asserts Defendant Defendant was negligent negligent in failing failing to provide provide Plaintiff Plaintiff judgment as a matter access to the parking parking lot across across the street street from its restaurant. restaurant. She She asserts asserts that that because because with safe access Defendant closed closed its parking parking lot to motor motor vehicles vehicles and used used it to serve serve food food and and alcoholic alcoholic beverages, beverages, Defendant this created created a dangerous dangerous situation situation in which which patrons patrons had had to cross cross Route Route 9 at night. night. She She maintains maintains that that Defendant was was negligent negligent because because it did not provide provide warning warning signs, signs, crossing crossing guards, guards, adequate adequate lighting lighting Defendant shuttle service service to ensure ensure that that patrons patrons could could safely safely cross cross Route Route 9. or a shuttle establish negligence, negligence, a plaintiff plaintiff must must demonstrate demonstrate the existence existence of of a duty duty the the defendant defendant To establish owed the plaintiff, plaintiff, a breach breach of of that that duty and and that that the breach breach was was a proximate proximate cause cause of of injury. injury. owed nd Dept Kievman v. Philip. Philip, 84 AD3d AD3d 1031 (2nd Dept 2011 2011).). Liability Liability for a dangerous dangerous or defective defective condition condition Kievman generally predicated upon ownership, ownership, occupancy, occupancy, control control or special special use of of the the on property property is generally predicated upon rd property. Giglio v. Saratoga Saratoga Care, Care, Inc., 117 AD3d AD3d 1143 (3rdDept (3 Dept 2014). 2014). A abutting abutting owner owner will property. Giglio be liable to a pedestrian pedestrian injured injured by a dangerous dangerous condition condition on public public property property only only when when the owner owner created the condition condition or caused caused the condition condition to occur occur because because of of a special special use. See Morelli Morelli v. created nd Dept Starbucks Corp., Corp., 107 Starbucks l 07 Ad3d Ad3d 963 (2nd Dept 2013). 2013). The principal principal of of special special use use imposes imposes an obligation obligation landowner only of a public public way way to a special special use for his own own on the abutting abutting landowner only where where he puts puts part of nd benefit and the part part used benefit used is subject subject to his control. control. Ruffino Ruffino v. NYC NYC Transit Transit Auth., Auth., 55 AD3d AD3d 819 (2 nd 2 [* 2] 2 of 5 FILED: DUTCHESS COUNTY CLERK 06/02/2021 02:25 PM NYSCEF DOC. NO. 69 INDEX NO. 2019-51305 RECEIVED NYSCEF: 06/01/2021 Dept 2008). Dept her safe passage ensure her Defendant passage across across Plaintiff to ensure owed no duty to Plaintiff that it owed established that Defendant has established the control to ability no had it that Route 9, a public road. Defendant's evidence establishes that had ability control establishes evidence Defendant's road. public Route conditions on Route Route 9. Under such circumstances, circumstances, Defendant Defendant owed owed no duty duty to Plaintiff Plaintiff for the Under such conditions mere fact night. The Route 9 at night. alleged dangerous dangerous condition condition posed attempting to cross cross Route The mere pedestrians attempting posed to pedestrians alleged Plaintiffs create such not create that such a duty. Plaintiffs vehicles did not motor vehicles lot to motor parking lot closed its parking Defendant closed that Defendant allegation that that Defendant's Defendant's knowledge knowledge that that patrons patrons would would cross cross the street street created created a duty duty to provide provide allegation patrons provide to across public roads presumes (l) Defendant Defendant had had the the obligation obligation provide patrons presumes that: (1) public roads passage across safe passage Defendant that Defendant property; and (2) that that property; with safe access access to and and from its property of that borders of beyond the borders property beyond of any unaware court This 9. Route had the authority to control pedestrian crossing conditions on Route This court is unaware of conditions authority control pedestrian crossing have safe precedent that that creates creates a duty duty of of a commercial commercial establishment establishment to ensure ensure that that patrons patrons have law or precedent establishment. that of access to property boundaries of that establishment. boundaries property the access placing reasonable care Defendant also established established that assume a duty duty of of reasonable care by placing that it did not assume Defendant has also done Defendant done had Defendant been in had have been would have Plaintiff Plaintiff would than Plaintiff position than vulnerable position more vulnerable Plaintiff in a more unequivocally Plaintiff 1144-45. at AD3d 117 nothing. generally Giglio Saratoga AD3d 1144-45. Plaintiff unequivocally Inc., Care, Saratoga v. Giglio generally See nothing. not rely on testified that that she was was not not intoxicated intoxicated when when she decided decided to cross cross Route Route 9 and and did not testified not that she did not Plaintiff stated Route 9. Plaintiff Defendant capacity to ensure ensure her safe passage across Route stated that passage across Defendant in any capacity decision the made unilaterally made that she unilaterally signs pertaining decision Route 9 and that crossing Route pertaining to crossing escorts or signs see any escorts where to cross. cross. In sum, sum, the unfortunate unfortunate fact that that Plaintiff Plaintiff was was struck struck by a motor motor vehicle vehicle while while where passage. safe ensure to duty a her owed crossing Route 9 does not demonstrate that Defendant owed duty ensure safe passage. crossing Route does not demonstrate that Defendant that of than that manner different Plaintiff allege that crossing Route different than of the general general Route 9 in a manner that she was crossing not allege Plaintiff does not premises on occurring celebration Mayo public. The mere fact that Defendant had a Cinco De Mayo celebration occurring its premises Cinco that Defendant public. The mere result. alter this result. does not alter in the vicinity accident does vehicle accident motor vehicle of the motor vicinity of opposition, Plaintiff Plaintiff fails to raise material issue issue of of fact. The The conflicting conflicting deposition deposition raise a material In opposition, warning of had signs guard or had testimony about whether employed a crossing crossing guard signs warning of the dangers dangers Defendant employed whether Defendant testimony about anyone on rely not that she did not rely testified that of anyone Plaintiff testified of fact. Plaintiff issue of create an issue not create Route 9 do not crossing Route of crossing actions of of the the defendant defendant to help help her cross cross the street. street. As Defendant Defendant had had no duty duty to Plaintiff Plaintiff or any actions Defendant whether matter with respect respect to the conditions conditions attendant attendant to crossing crossing Route Route 9, it does does not matter whether Defendant with not create had a crossing crossing guard guard or signs signs present. above, Defendant Defendant did did not create a dangerous dangerous noted above, present. As noted not does and lit well not that location a 9 condition. While crossing six lanes oftravel on Route in location that is not well and does not Route lanes of travel condition. While crossing the responsible for the not responsible was not Defendant was have a crosswalk condition, Defendant dangerous condition, constitute a dangerous could constitute crosswalk could its of bounds the beyond was roadway the as 9 maintenance or safety of pedestrians crossing Route roadway was beyond the bounds of Route maintenance safety of pedestrians crossing not create property. The mere event in proximity Route 9 did did not create such such a duty. duty. proximity to Route had an event that it had mere fact that property. The she that friend her advised Notably, Plaintiff testified that police officer not Defendant advised her friend that was Defendant and officer police a that testified Notably, Plaintiff that the record that the record evidence in the required street to pick There is no evidence Plaintiff. There pick up Plaintiff. the street across the park across required to park conditions surrounding surrounding the crossing crossing of of Route Route 9 were were under under Defendant's Defendant's control. control. conditions provide grounds Nor does the expert expert opinion opinion of of Plaintiff engineer provide grounds to avoid avoid summary summary traffic engineer Plaintiffss traffic Nor does pedestrians for condition judgment. expert asserts asserts that created a dangerous dangerous condition pedestrians Defendant created that Defendant Plaintiffss expert judgment. Plaintiff whether opinion as to whether offer a legal crossing Route engineer, however, qualified to offer legal opinion not qualified however, is not The engineer, Route 9. The crossing 3 [* 3] 3 of 5 FILED: DUTCHESS COUNTY CLERK 06/02/2021 02:25 PM NYSCEF DOC. NO. 69 INDEX NO. 2019-51305 RECEIVED NYSCEF: 06/01/2021 a Defendant owed owed a duty duty to pedestrians pedestrians outside outside the boundaries boundaries of of its property. property. As a matter matter oflaw, oflaw, on Defendant of this case the court court finds finds that that Defendant Defendant did not have have such such a duty. There There is no evidence evidence the facts of Defendant benefitted benefitted from Route Route 9 in a manner maimer different different from from that that of of the the general general public. that Defendant public. To construe the benefit Defendant received received from the use of of a parking across Route Route 9 as a "special "special construe benefit Defendant parking lot across benefit" would would effectively effectively allow allow the special special use exemption exemption to eviscerate eviscerate the the rule exempting abutting abutting benefit" rule exempting landowners from from liability liability for injury injury on public ways. See Balsam Balsam v. Delma Delma Eng'g Eng'g Corp., Corp., 139 AD2d AD2d landowners public ways. st (1stDept Moreover, Plaintiff's Plaintiff s deposition deposition testimony testimony demonstrates demonstrates that that she did did not not rely 292 (1 Dept 1988). Moreover, on any actions.of Defendant to ensure · · actions.ofDefendant ensure safe passage passage across across Route Route 9. Plaintiffs claims claims that that Defendant's Defendant's violation violation of of the New York State State Alcohol Alcohol Beverage Beverage New York Plaintiff's Control Law Law and Fishkill Fishkill Town Town Code Code improperly improperly assert assert new new theories theories ofliability ofliability for the the first time time in Control 1 Dept2019). Therefore, opposition to Defendant-'s Defendant's motion. motion. See Marti Marti v. Rana, Rana, 173 AD3d AD3d 576 (l5 (lstDept2019). Therefore, opposition these theories theories may may not not be used used to defeat defeat Defendant's Defendant's motion. motion. Id. While While Plaintiff Plaintiff raised raised these these claims claims these in a supplemental supplemental bill bill of of particulars particulars served served on March March 10, 2021, 2021, that that document document was was filed filed after· after Defendant filed its motion motion for summary summary judgment. Based on the the foregoing, foregoing, it is Defendant judgment. Based ORDERED that that the motion motion ofD~fendant of Defendant Maya Maya Cafe Cafe & Cantina, Cantina, Inc. Inc, for summary summary judgment ORDERED judgment dismissing Plaintiff's Plaintiffs claims claims is granted. granted. The jury selection scheduled scheduled for September September 27, 27,2021 dismissing jury selection 2021 is hereby canceled. canceled. The The court court file does does not reflect reflect that that Defendant Defendant Cafe Cafe Maya Maya Express, Express, Inc. has has hereby appeared in this action. action. Plaintiff Plaintiff shall shall notify notify this court court in writing writing on or,before or ,before June June 25, 2021 as to appeared how · how it intends intends to proceed proceed against against that that Defendant. Defendant. The foregoing foregoing constitutes constitutes the decision decision and order order of of the Court. Court. . . Dated:'-':£,~ 2021i Dated:·~·~ l, , 202 Poughkeepsie, New York Poughkeepsie, New y ork ENTER: ENTER: MARIA G. ROSA, ROSA, J.S.C. J.S.C. MARIA Scanned to the E-File E-File System System only only Scanned Pursuant to CPLR CPLR §5513, ~5513,an appeal as of of right right must must be taken.within taken within thirty thirty days days after after service service by a Pursuant an appeal party upon upon the appellant appellant of of a copy copy of of the judgment order appealed appealed from from and and written written notice notice of of its party judgment or order except that that when when the the appellant appellant has has served served a copy copy of of the judgment order and and written written notice notice judgment or order entry, except of its entry, the appeal appeal must must be taken taken within within thirty thirty days thereof. thereof. of · Bailly and McMillan, McMillan, LLP Bailly Westchester Avenue, Avenue, Suite Suite 40? 405 707 Westchester White Plains, Plains, NY 10604 White NY 10604 4 [* 4] 4 of 5 FILED: DUTCHESS COUNTY CLERK 06/02/2021 02:25 PM NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 06/01/2021 Law Office Office of of Thomas Thomas K. Moore Moore 2903 PO Box 2903 Hartford, CT 06104 Hartford, 06104 5 [* 5] INDEX NO. 2019-51305 5 of 5

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