Christie v. Ciboney Café, Ciboney, Inc.

JAMES D. PAGONES

Andrew L. Spitz, Esq., Finkelstein & Partners, Shirley Lovejoy, as Administratrix of the Estate of Abdullah Haddad, Newburgh, for Plaintiff. Jerusha Christie, Poughkeepsie, Plaintiff, Pro Se.
William W. Frame, Esq., Corbally, Gartland & Rappleyea, LLP, Ciboney Café, Ciboney, Inc., Valerie Peterkin, and Donald L. Peterkin Poughkeepsie, Victor Dunlop, Esq. Dunlop & Associates, P.C. Jermaine Coleman p/k/a Maino Brooklyn, for Defendant.
JAMES D. PAGONES, J.

Defendants Ciboney Café, Inc., Ciboney, Inc., Valerie Peterkin and Donald Peterkin move for summary judgment dismissing plaintiffs' complaint.

It is well settled that in order “to obtain summary judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b] ), and he or she must do so by tender of evidentiary proof in admissible form.” (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 1067 [1979].) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. (Albouyeh v. County of Suffolk, 96 A.D.2d 543 [2d Dept.1983] aff'd62 N.Y.2d 681 [1984].) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980].)

The incident which forms the basis for this lawsuit occurred during the early morning hours of August 3, 2008 at Ciboney Café, located at 189 Church Street, Poughkeepsie, New York. The moving defendants were the owners and operated the subject establishment at the time.

The record indicates that defendant Valarie Peterkin entered into a contract with a promoter, Mimi Brown, for the use of the Café to host a DJ concert. The event was to begin at approximately 10:00 p.m. on August 2, 2008 and conclude at 4:00 a.m. on August 3, 2008. The DJ artists who were expected to perform were identified by the promoter in a flyer. The promotional materials did not identify defendant Jermaine Coleman p/k/a Maino as one of the performers. The record clearly indicates he was not an employee of any of the moving defendants, nor under their control or supervision.

According to Peterkin, security personnel was present throughout the concert. Sometime between 2:00 a.m. and 3:00 a.m. on August 3, 2008, Maino became involved in an altercation with a patron. The violence escalated to such a degree that the City of Poughkeepsie Police and other police agencies were required to respond to provide crowd control and additional security.

As a general rule, landowners owe a duty to exercise reasonable care to prevent harm to patrons on their property. (D'Amico v. Christie, 71 N.Y.2d 76, 85 [1987].) “However, an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control. Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults” ‘. (Kranenberg v. TKRS Pub, Inc., Doing Business as Bungalow Bills Saloon, 99 AD3d 767 [2d Dept.2012] quoting Giambruno v. Crazy Donkey Bar & Grill, 65 AD3d 1190, 1192 [2d Dept.2009].)

On this application, the defendants have established that they provided adequate security to the promoter of what was advertised as a DJ party. The record indicates that a fight unexpectedly started and then spread quickly to the point where police intervention became necessary. The defendants have demonstrated that they could not have reasonably anticipated or predicted the fight which allegedly caused the plaintiffs' injuries. ( Kranenberg, supra at 768.) Defendants have established on a prima facie basis their entitlement to a judgment dismissing plaintiffs' complaint in its entirety.

In response, plaintiffs have failed to establish that there are any triable issues of fact with regard to the moving defendants.

For all of the foregoing reasons, it is ordered that defendants' motion is granted and plaintiffs' complaint against the moving defendants is dismissed in its entirety.

The plaintiffs and remaining defendant are directed to appear for trial on August 16, 2013 as previously scheduled pursuant to a pretrial conference on November 7, 2012 and memorialized in the Court's correspondence, respectively dated November 26, 2012 and July 18, 2013.

The Court read and considered the following documents upon this application:

PAGES

Affirmation–Frame

Exhibits

Affidavit–Valerie Peterkin

Exhibits

Memorandum of Law

Exhibits

		NUMBERED
1.	Notice of Motion	1–2
		1–3
		1–2
		1–3
		A–C
		1–12
2.	Affirmation in Opposition–Spitz	1–18
		A–B
3.	Unsworn Statement–Jerusha Christie	1
4.	Reply Affirmation–Frame	1–4