Cite as: Lindon Ramsey v. CEC Entertainment, Inc., 24608/05, NYLJ 1202590981206, at *1 (Sup., KI, Decided March 27, 2012)

Justice Francois A. Rivera

 

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Decided: March 27, 2012

ATTORNEYS

Attorney for Plaintiff: Alan C. Glassman, Esq., Lynbrook, N.Y.

Attorney For CEC Defendant: David S. Rutherford, Esq., Rutherford & Christie, LLP. New York N.Y.

 

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By notice of motion filed on September 9, 2011, under motion sequence ten, defendant CEC Entertainment, Inc., doing business as Chuck E. Cheese (hereafter "CEC") has moved pursuant to CPLR 3212 for summary judgment dismissing the complaint on the basis that Lindon Ramsey's injuries were unforeseeable and that he assumed the risk of his injury. Plaintiffs have opposed the motion.

BACKGROUND

On August 10, 2005, plaintiffs commenced this action by filing a summons and verified complaint. According to the amended complaint and the plaintiffs' deposition testimony, the instant action is for damages for personal injuries sustained by Lindon Ramsey on June 18, 2005, at a Chuck E. Cheese restaurant located on the third floor of the Atlantic Terminal Mall at 139 Flatbush Avenue, Brooklyn, New York (hereafter "the

 

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subject premise"). On that date Lindon Ramsey brought his wife, Beatrice D. Ramsey, and their two children as guests of Ali Parchment, who was hosting a party for his own child at the subject premise. While at the subject premise Lindon Ramsey and Ali Parchment were stabbed by a patron who had been consuming alcohol with six other men. The complaint alleges that CEC is the owner and negligently failed to keep the subject premise safe thereby causing Lindon Ramsey's injuries and his wife's derivative injuries.

CEC interposed an answer dated September 29, 2005. On October 16, 2006, plaintiffs filed an amended summons and complaint. In the first week of November 2006, plaintiffs filed two affidavits of the service of the amended summons and complaint upon each of the defendants. On December 18, 2006, IBSC Agency, Inc., filed its verified answer to the amended complaint. It is unclear whether CEC interposed an answer to the amended complaint.

MOTION PAPERS

CEC's motion consists of an affirmation of counsel with fourteen annexed exhibits labeled A through N, and a memorandum of law. Exhibit A is a copy of plaintiffs' summons and verified complaint dated August 9, 2005. Exhibit B is a copy of CEC's answer to the summons and complaint dated September 29, 2005. Exhibit C is a stipulation of discontinuance of the action against defendant IBSC. Exhibit D is a copy of the summons and complaint of plaintiff Ali Parchment against CEC and Forest City Ratner Companies (hereafter "FCR") which commenced the related action bearing index number 34072/2006 (hereafter "the related action"). Exhibit E is CEC's answer to Ali Parchment's complaint in the related action. Exhibit F is FCR's answer to Ali Parchment's

 

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complaint in the related action. Exhibit G is the third-party summons and complaint of FCR against CEC dated June 15, 2011. Exhibit H is CEC's answer to the third-party summons and complaint of FCR. Exhibit I is an order of this court consolidating the instant action with the related action. Exhibit J is a copy of the deposition transcript of plaintiff Lindon Ramsey. Exhibit K is a copy of the deposition transcript of plaintiff Beatrice Ramsey. Exhibit L is the plaintiffs' note of issue dated January 24, 2011. Exhibit M is a copy of the transcript of the hearing before this court on June 10, 2011, where CEC made an application to strike plaintiffs' note of issue. Exhibit N is a copy of this court's order dated June 10, 2011, which extended CEC's time to move for summary judgment to September 9, 2011.

Plaintiffs' opposition papers consist of their attorney's affirmation and seven exhibits labeled A through G. Exhibit A is Lindon Ramsey's affidavit. Exhibit B is Beatrice Ramsey's affidavit. Exhibit C is a copy of the deposition transcript of CEC, by the manager of the subject business location, Richard Bergeron. Exhibit D is a copy of a CEC accident report. Exhibit E is a copy of a document purporting to be CEC's "Responsible Alcohol Service" policy. Exhibit F is a copy of a document purporting to be CEC's "Safety Program." Exhibit G is a copy of a document purporting to be CEC's "Security Program."

CEC replied to plaintiffs' opposition papers with an attorney's affirmation.

LAW AND APPLICATION

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]).

 

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The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v. Citibank, 100 N.Y.2d 72 [2003]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 N.Y.2d 923 [1993]). If a prima facie showing has been made, the burden shifts to opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, 68 N.Y.2d at 324).

A motion made pursuant to CPLR 3212 would require the annexing of pleadings under section 3212(b). "The pleadings" means "a complete set of the pleadings" (Wider v. Heller, 24 A.D.3d 433 [2d 2006]) or "all the pleadings" (Welton v. Drobniki, 298 A.D.2d 757 [3d 2002]).

The requirement that a motion for summary judgment be supported by the pleadings is mandatory. In fact, the failure to include the pleadings would render the motion procedurally defective (Matsyuk v. Konkalipos, 35 A.D.3d 675 [2d 2006]; Wider v. Heller, 24 A.D.3d 433 [2d 2006]).

An amended pleading, once served, supersedes the initial pleading and becomes the only pleading in the case as though the initial pleading was never served (see Elegante Leasing, Ltd. v. Cross Trans Svc, Inc., 11 A.D.3d 650 [2d 2004]; see also, Titus v. Titus, 275 A.D.2d 409 [2d 2000]).

The court may take judicial notice of its own records (see Wachovia Bank, N.A. v. Otto N. Williams, 17 Misc. 3d 1127[A] [NY Sup. 2007] citing Matter of Khatibi v. Weill, 8

 

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A.D.3d 485 [2d 2004]). In so doing, the court takes judicial notice of the following four documents filed with the Kings County Clerk's Office. On October 16, 2006, plaintiffs filed an amended summons and complaint. On November 2, 2006, plaintiffs filed an affidavit of service of the amended summons and complaint on defendant CEC. On November 6, 2006, plaintiffs filed an affidavit of service of the amended summons and complaint on defendant IBSC Agency, Inc. On December 18, 2006, defendant IBSC Agency, Inc., filed its verified answer to the amended complaint.

Defendant CEC did not annex the amended complaint to its motion. The failure to include the amended pleadings render the instant motion procedurally defective (Matsyuk v. Konkalipos, 35 A.D.3d 675 [2d 2006]; Wider v. Heller, 24 A.D.3d 433 [2d 2006]).

Although plaintiffs did not raise this deficiency in opposition to the motion, the requirement of a complete set of pleadings is mandatory and exists for the benefit of the court. Accordingly, the motion may be denied on this basis alone (Sendor v. Chervin, 51 A.D.3d 1003 [2d 2008] citing Thompson v. Foreign Cars Ctr., Inc., 40 A.D.3d 965 [2d 2007]).

However, the failure to apprise the court of the amendment of the complaint and the failure to annex the amended complaint to the instant motion has raised another issue which independently prevents the court from granting CEC's motion for summary judgment.

CPLR 3025(d) pertains to responses to amended or supplemental pleadings and provides as follows:

Except where otherwise prescribed by law or order of the court, there shall be an

 

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answer or reply to an amended or supplemental pleading if an answer or reply is required to the pleading being amended or supplemented. Service of such an answer or reply shall be made within twenty days after service of the amended or supplemental pleading to which it responds.

CEC did not state whether it answered plaintiffs' amended complaint. Assuming that it did, the amended answer was not annexed to the motion and that failure would also render the motion procedurally defective (Matsyuk v. Konkalipos, 35 A.D.3d 675 [2d 2006]; Wider v. Heller, 24 A.D.3d 433 [2d 2006]).

Assuming that it did not answer the amended complaint, CEC did not offer an explanation for its failure to do so. "The moment of joinder of issue continues to be the earliest time for the making of a motion for summary judgment on the claim involved. If the motion is made against the plaintiff's cause of action, the service of the defendant's answer marks the joinder of issue; if its subject is a counterclaim, the service of the plaintiff's reply is the moment of joinder (Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3212:12)."

"The requirement that issue be joined before a motion for summary judgment is granted is intended to show the court precisely what the plaintiff's claims and the defendant's position as to them, and his defenses, are" and has been strictly adhered to (see Miller v. Nationwide Mutual Fire Ins. Co., 92 A.D.2d 723,724 [4d 1983]).

It has been held that the Supreme Court is powerless to grant summary judgment prior to joinder of issue (see Shaibani v. Soraya, 71 A.D.3d 1121 [2d 2010], citing Union Turnpike Associates, LLC v. Getty Realty Corp., 27 A.D.3d 725, 728 [2d 2006]).

 

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Therefore, CEC's motion for summary judgment may be denied either because CEC failed to annex all the pleadings or because the motion is premature. For the following reasons, however, the court has reached and has denied CEC's motion on the merits.

CEC's motion seeks summary judgment on liability in its favor and dismissal of the complaint on the basis that Lindon Ramsey's injuries were not foreseeable.

The deposition transcripts of the plaintiffs were the only sworn allegations of facts submitted in support of CEC's motion. It is well settled that property owners and occupiers owe a duty of reasonable care under the circumstances to keep their premises safe (see Basso v. Miller, 40 N.Y.2d 233, 240-241; see also Malley v. Alice Hyde Hosp. Assn., 297 A.D.2d 425[3d 2002]). Although a jury determines whether and to what extent a particular duty was breached, it is for the court first to determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society generally (Tagle v. Jakob, 97 N.Y.2d 165, 168 [2001]). The scope of any such duty of care varies with the foreseeability of the possible harm (Id.). The issue of foreseeability is normally a question of fact for a jury, but it is a question of law when but a single inference can be drawn from undisputed facts (See, Elwood v. Alpha Sigma Phi, 62 A.D.3d 1074, 1076 [3d 2009]; citing, Hendricks v. Lee's Family Inc., 301 A.D. 2d 1013 [3d 2003]; Hessner v. Laporte, 171 A.D.2d 999 [3d 1991]).

In particular, they have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably

 

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aware of the need for such control (see, De Ryss v. New York Cent. R. R. Co., 275 N.Y. 85 [1937]). Applying this rationale, lower courts have recognized that a landowner may have responsibility for injuries caused by an intoxicated guest (D'Amico v. Christie, 71 N.Y. 2d 76 [1987] citing, Joly v. Northway Motor Car Corp., 132 A.D.2d 790 [3d 1987]; Comeau v. Lucas, 90 A.D.2d 674 [4d 1982]; and Huyler v. Rose, 88 A.D.2d 755 [4d 1982], appeal dismissed 57 N.Y.2d 777 [1982]).

Significantly, however, these decisions have uniformly acknowledged that liability may be imposed only for injuries that occurred on the defendant's property, or in an area under the defendant's control, where the defendant had the opportunity to supervise the intoxicated guest (see, e.g Delamater v. Kimmerle, 104 A.D.2d 242, 244 [3d 1984]; Comeau v. Lucas, supra; Wright v. Sunset Recreation, 91 A.D.2d 701 [3d 1982], and Huyler v. Rose, supra). That duty emanated not from the provision of alcohol but from the obligation of a landowner to keep its premises free of known dangerous conditions, which may include intoxicated guests (D'Amico v. Christie, 71 N.Y.2d 76 [1987]).

Lindon Ramsey's factual allegations pertaining to how he was injured were set forth in his original complaint, his amended complaint and in his deposition testimony. CEC's annexed answer to the original complaint admits that it is a foreign corporation licensed to do business in the State of New York and that it operated a restaurant business at the Atlantic Terminal Mall located at 139 Flatbush Avenue, Brooklyn, New York. It denies all other allegations of fact in plaintiffs' original complaint.

Although the court lacks CEC's answer to the amended complaint, its motion papers do not expressly or implicitly agree with Lindon Ramsey's account of how he was

 

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injured on the subject premise. The court cannot find that the facts surrounding plaintiffs' injury are undisputed. Therefore, CEC's claim that the injury was unforeseeable cannot be determined as a question of law in the context of the instant summary judgment motion.

Even if one assumes, for the sake of argument, that by annexing plaintiffs' deposition testimony to its motion, CEC was implicitly accepting as undisputed the plaintiffs' version of the facts, there are so many questions raised and left unanswered by CEC's motion papers that summary judgment is not available.

What steps, if any, did CEC take to supervise and control the conduct of the seven male patrons who were allegedly consuming alcohol and behaving in a rowdy and disrespectful fashion on the subject premise? These men were described as loud, unruly and improperly grabbing and disturbing women who were not with them. Did CEC have a license to sell alcohol, did CEC serve the rowdy group alcohol, or allow them to bring it in and consume it on its premise? What, if anything, did CEC observe and do to control the patrons in general and the rowdy bunch in particular before one of them stabbed the defendant? There are but a few and not an exhaustive list of the unanswered questions which naturally are raised and which are relevant to CEC duty to its patrons. The court cannot and does not find that only a single inference of unforeseeability can be drawn form the facts presented. CEC has not made a prima facie showing of entitlement to judgment as a matter of law.

The court turns to CEC's claim that the complaint should be dismissed because Lindon Ramsey engaged in conduct which assumed the risk of his injury. Under CPLR

 

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1411, an action to recover damages for personal injury, injury to property, or wrongful death, the injured person's culpable conduct-whether in the form of a negligent failure to appreciate a known danger or in the form of an implied assumption of risk — operates only to diminish his or her recoverable damages. It does not operate to dismiss the plaintiff's complaint (see Arbegast v. Board of Education, 65 N.Y.2d 161 [1985]).

However, recovery may be barred if the doctrine of express assumption of risk or the doctrine of primary assumption of risk is deemed applicable. Express assumption of risk involves an agreement between the parties in advance that defendant need not use reasonable care for benefit of plaintiff and will not be liable to the plaintiff for the consequences of negligent conduct (Arbegast v. Board of Education, 65 N.Y.2d 161 [1985]). Where an individual has expressly agreed to assume the risk of harm, a defendant is relieved of the duty to exercise reasonable care for the benefit of that individual and will therefore not be liable for the individual's injuries.

Primary assumption of risk, which serves to relieve a defendant of its duty of reasonable care and is a complete bar to recovery, applies to those situations where the activity in which the plaintiff is voluntarily participating is itself inherently risky, such as sporting and entertainment events, and the injury-causing event is a known, apparent or reasonably foreseeable consequence of such participation (Turcotte v. Fell, 68 N.Y.2d 432 [1986]).

Express assumption of the risk and primary assumption of the risk are inapplicable to the instant case. Therefore, assuming for the sake of argument that the concept of

 

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implied assumption of the risk would be applicable to the facts of the instant case, Lindon Ramsey's implied assumption of the risk cannot serve as a basis for dismissal of the complaint (see Arbegast v. Board of Education, 65 N.Y.2d 161 [1985]).

CEC's motion for summary judgment dismissing the complaint pursuant to CPLR 3212 is denied on the merits.

The foregoing constitutes the decision and order of this court.