Shoyinka v DeAngelis 2013 NY Slip Op 33805(U) July 2, 2013 Supreme Court, Bronx County Docket Number: /08 Judge: Wilma Guzman Cases posted with

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1 Shoyinka v DeAngelis 2013 NY Slip Op 33805(U) July 2, 2013 Supreme Court, Bronx County Docket Number: /08 Judge: Wilma Guzman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication.

2 [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX IASPART7 Index :.~2/08 M n Calendar'\J..o. 22, 23 otion Date: 4/29/13 OLU SHOYINKA and LINNAIRE SHOYINKA, -against- Plaintiff, RALPH DEANGELIS, PATRICK DEANGELIS, SHOWER DOOR, NEW YORK YANKEES PARTNERSHIP, individually and doing business as NEW YORK YANKEES, NEW YORK YANKEES, as VOLUME SERVICES, INC., and VOLUME SERVICES, INC., Defendants, DECISION/ ORDER Present: Hon. Wilma Guzman Justice Supreme Court Recitation, as required by C.P.L.R. 2219(a), of the papers considered in the review of this motion for summary judgment: Papers Defendant Yankees Notice of Motion, Affirmation in Support, and Exhibits Support.... Plaintiff Affirmation in Opposiiton, Defendant Center Plate Affirmation in Opposition Reply Affirmation Plaintiff Notice of Motion, Affirmation in Support and Exhibits in Support... 2 Defendant Centerplate Affirmation in Opposition Reply Affirmation Numbered 1 Upon the foregoing papers and after due deliberation, the Decision/Order on this motion is as follows: Defendants the New York Yankees Partnership, individually and doing business as New York Yankees, New York Yankees (hereinafter referred tb as defendant "Yankees") move for summary judgment dismissing the plaintiffs complaint and all cross-claims and permitting defendant Y ankess to enter judgment with the Clerk of the Court against plaintiff with statutory costs and disbursements. Plaintiff submitted written opposition. Plaintiff moves for summary judgment on the issue of liability as to defendants Patrick Page 1 of 6

3 [* 2] DeAngelis and Ralph DeAngelis and summary judgment on the grounds of liability pursuant to General Obligations Law as to defendants Centerplate, Inc., individually and doing business as VOLUME SERVICES, INC., and VOLUME SERVICES., Inc., (hereinafter referred to as "Centerplate"). Centerplate submitted written opposition. For purpose of disposition, both motions are consolidated and decided as follows: The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. see, Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (NY 1986) and Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316 (NY 1985) Summary judgment is a drastic remedy that deprives a litigant of his or her day in Court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable, inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to nonmoving party. see, Assafv. Ropog Cab Com., 153 A.D.2d 520, 544 N.Y.S.2d 834 (1" Dept. 1989). It is well settled that issue finding, not issue determination, is the key to summary judgment. see, Rose v. DaEcib USA, 259 A.D.2d 258, 686 N.Y.S.2d 19 (1st Dept. 1999). Summary judgment will only be granted ifthere are no material, triable issues of fact. see, Sillman v. Twentieth Centm:y-Fox Film C01:p., 3 N.Y.2d 395, 144 N.E.2d 387, 165 N.Y.S.2d 498 (NY 1957). A rear-end collision with a stopped vehicle creates a presumption that the driver of the moving vehicle was negligent and entitles the passengers of the stopped vehicle to summary judgment, unless the driver of the moving vehicle comes forward and demonstrates a non-negligent explanation for the accident or for her failure to maintain a safe distance between the cars as provided by Vehicle and Traffic Law see, Burns v. Gonzalez, 307 A.D.2d 863, 763 N. Y.S.2d 603 (1 ' 1 Dept. 2003) and Agramonte v. City of New York, 288 A.D.2d 75, 732 N. Y.S.2d 414 (1st De:pt. 2001). A motion for summary judgment is not premature where the defendant fails to demonstrate that there are facts that may exist but could not be stated at the time of the motion. C.P.L.R. 3212( ); Griffen v. Pennoyer, 852 N.Y.S. 2d 765(1 st Dept. 2008). Defendant Patrick DeAngelis testified that on June 22, 2008 he was twenty years old. On June 22, 2008, he and a friend Andrew Gau, went to the Yankee game with Mr. DeAngelis being the operator of the vehicle owned by his father, Ralph DeAngelis. He parked his vehicle in a parking Page 2 of 6

4 [* 3] garage near the stadium and waited for the game to start. In the hour that they waited in the vehicle, defendant DeAngelis consumed approximately four beers as well as taking a shot and a half or two of vodka. While in the stadium, he and Andrew purchased beer from a vendor at his seat. The first beer was purchased around 1 : 3 Opm. Defendant P. DeAngelis testified that the vendor did not ask for identification. He purchased approximately three beers from a vendor at his seat as well as a hotdog. At no time did the vendor ask for identification. The game ended around 4:30pm and defendant P. DeAngelis hung around the stadium for approximately one hour before driving. During this time he did not have any alcohol. Defendant P. DeAngelis testified that at the time he first saw the other vehicle involved in the accident, it was stopped and his vehicle was moving. He was looking down changing music on his ipod. When he looked up he saw the other vehicle and slammed on his brakes. At the time his vehicle struck the other vehicle it was stopped. When the police arrived he was arrested. Douglas Behar testified that he is the senior director of stadium operations, employed by defendant Yankees. His duties include overseeing certain front operations such as ticket takers, security and guest relations as well as back operations which includes engineering, grounds crew, maintenance and electricians. His responsibilities did not include overseeing the sale of the alcohol at the stadium. Mr. Behar testified that Center Plate (also known as Volume Service) provided concessions at the stadium, which included all food and beverages including alcoholic beverages. His duties as it applied to Centerplate only included delivery schedules, storage space and things of that nature. Centerplate ran its own operation. He was not familiar with the terms of the contract between the Yankees and Centerplate nor was he involved with Centerplates obtaining a liquor license. The vendors or hawkers who sold alcohol in the stands at the stadium were employed by Center plate, which also operated the restaurants within the stadium. He testified that the there were signs posted about age and the limit of alcoholic beverages posted on Center plate's concession stands and portables which were the stations that had the ability to move. John Dooley testified that in 2008 he was the food and beverage director for Center plate which in 2008 provided food and beverage service to Yankee Stadium. Centerplate was also responsible for serving alc(')holic beverages which could be sold by vendors to patrons in their stadium seats. His duties include food and beverage service for the suites and catering for the press Page 3 of 6

5 [* 4] lounge. The person in charge of the concession stands and vendors was Antthony Parnagian. Jyce Papa was in charge of training all the concession people. To train the persons serving alcohol, Centerplate would require training by a TIPS certified alcohol serve whose purpose was to educate the Centerplate serve how to recognize when someone should not have anymore alcohol, when someone is too young to have alcohol and how to serve alcohol ip a pleasant customer-satisfying fashion and avoiding trouble with the guests. Some employees had TEAM training, which Mr. Dooley described as another alcohol awareness program. This training also included those concession employees who served alcoholic beverages in the stands. He was not familiar with the terms of the contract between the Yankees and Centerplate. Upon completion of the TIPS or TEAM training the employee would-receive the employee beer and alcohol policy handbook which indicated thatyou could not serve alcohol to anyone under 30-years old without ID. If the employee was unsupervised and a hawker in the stands then the person had to look at least 40 before alcohol could be served. His understanding of the Centerplate's zero-tolerance alcoholic serving policy was that if an employee was observed selling alcohol without obtaining identification or to drunk people they would lose there job. He has no personal knowledge of how the vendors assigned to section 36, 544 an548 carried out their duties or whether they checked the ID each individual being served on June 22, Mr. Dooley did not know who held the liquor license. The General Obligations Law, Section (1) provides that : Any person who shall be injured in person, property, means of support or otherwise, by reason of the intoxication or impairment of ability of any person under the age of twenty-one years, whether resulting in his death or not, shall have a right of action to recover actual dama_ges against any person who knowingly causes such intoxication or impairment of ability by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for such person with knowledge or reasonable cause to believe that such person was under the age of twenty-one years. The Alcohol Purchase Age Law or Gen. Obi. Law Section (1), holds liable those persons who play an "indispensable role" in furnishing alcohol to a person under the age of twenty one. McGlynn v. St. Andrew the Apostle Church, 304 A.D.2d 372 (l' 1 Dept.2003) citing Rustv. Meyer, 91 N.Y.2d Page 4 of 6

6 [* 5] 355 (1998). In the instant case, defendant Patrick DeAngelis testified that on June 22, 2008 he was twenty years old when he purchased approximately three beers while in his seat at Yankee Stadium. He further alleges that prior to the sale, the vendor did not ask him for identification. This recount of events, if taken as true would indicate a deviation from the rules of Centerplate and a violation of Gen. Ob. Law 11-l 00. Nonetheless, the plaintiffs motion as to defendant Centerplate is denied. Based upon the testimony submitted, including that of plaintiffs friend, Mr. Gau, questions of fact exist to warrant denial of the motion for summary judgment. Neither plaintiff or Mr. Gau recalled where they sat within the stadium so as to resolve the issue of whether the vendor assigned would have requested identification or nc~t. Defendant Centerplate argues and submits the 2008 Handbook ' which indicates the practice and guidelines that all servers must use, to wit, verifying the age of any patron who appeared to be under the age of 30. While, it would be unreasonable to request that defendant produce for deposition, all workers in the Stadium, or within the "nosebleed" seat section, plaintiff was unable to provide any information as to the section he was seated in so as to determine ' the identification of the vendor or vendors who served him. In this regard, this Court is unable to hold that the drastic remedy of summary judgment is warranted, where defendant has raised an issue of fact as to whether defendant Centerplate played an indispensable role in furnishing a minor with alcohol. While noteworthy, that the plaintiff testified that he had four beers and two shots/swigs of vodka prior to entering the stadium, such acts do not limit the role of Centerplate in furnishing additional alcohol to a minor and would be relevant at the time of trial as to comparative or contributory negligence. Defendant Yankees motion for summary judgment is denied. Defendant Yankees claims that defendant Centerplate is an independent contractor, with whom pursuant to the contract, was vested all responsibility and liability in regards to concessions, including the duty requesting identification before serving alcoholic beverages. Generally, a party who retains an independent contractor is not liable for the negligent actions of said contractor, unless (1) there was negligence in the selection, instruction or supervision of the contractor; (2) non-delegable duties of the employer arising out of some relation toward the public or the particular plaintiff [and] (3}work, which is specially, peculiarly or "inherently" dangerous. Kleeman v. Rheingold, 81N.Y.2d270 (1993). Applicable herein, as argued by the plaintiff in opposition, is the issue of whether compliance Page 5 of 6

7 [* 6] with the Alcohol Purchase Age Law is a nondelegable duty in relation to the public. The Court of Appeals has defined a nondelegable duty as one where the "responsibility is so important to the community. Brothers v. New York State Electric and Gas Cor_poration, 11 N. Y.3d 251 (2008)citing Feliberty v Damon, 72 N.Y.2d 112 at (1988) that the employer should not be permitted to transfer it to another. This Court finds that the issue of whether an underage person is furnished alcoholic beverages is an issue important to the community. New York Alcohol and Beverage Control Law 65, Dram Shop Act has been interpreted by the Courts as having the intent of protecting the public from the dangers of intoxicated persons. "The Dram Shop Act, intended to, among other things, protect the community from the dangers intoxicated people pose... imposes a duty upon sellers of alcohol to protect the public from such dangers. O'Gara v. Alaci.67 A.D.3d 54(2"ct Dept.) internal citations omitted. N.Y. Alch. Bev. Law 65(1) and Gen. Obl. Law extends this duty to the community to those who furnish alcohol to minors. As such, the defendant Yankees motion for summary judgment is hereby denied. All other portions of defendants motion are unavailing. Accordingly, it is ORDERED that plaintiffs motion for summary judgment as to defendants Patrick DeAngelis and Ralph DeAngelis is hereby granted without opposition. It is further ORDERED that plaintiff's motion for summary judgment as to defendants Centerplate, Inc., individually and doing business as VOLUME SERVICES, INC., and VOLUME SERVICES., Inc is denied. It is further ORDERED that defendant Yankees motion for summary judgement is hereby denied. It is further ORDERED that Plaintiff shall serve a copy of this order with notice of e within thirty (30) days of the entry of this order. This constitutes the decision and order of the court. upon all parties, DATE HON. WIL Page 6 of 6