INDEX NO /2017 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 07/06/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X LINDA KIRSCH, Plaintiff, Index No /2017 SECOND AMENDED -against- COMPLAINT LINCOLN CENTER FOR THE PERFORMING ARTS, INC., AMERICAN BALLET THEATRE, METROPOLITAN OPERA HOUSE, "JOHN DOE", as further described in the annexed complaint and BRIAN McCALISTER and STEVEN GANT, Defendants. â â â â â â â â â â â â â X Plaintiff, complaining of the defendants herein by her attorneys, Antin, Ehrlich & Epstein, LLP, respectfully sets forth and alleges as follows: 1. Upon information and belief, that at all times herein mentioned, defendant Lincoln Center for the Performing Arts, Inc., maintained a business in the County, City and State of New York. 2. That upon information and belief defendant and at all times hereinafter mentioned, the "Lincoln" defendant, Lincoln Center for the Performing Arts, Inc. (herein after referred to as "Lincoln") was a domestic not-for-profit corporation duly organized and existing under and by virtue of the laws of the State of New York. 3. That upon information and belief defendant and at all times hereinafter mentioned, the "American" defendant, American Ballet Theatre (herein after referred to as "American"), was an unincorporated business duly organized and existing under and by virtue of the laws of the State of New York. 1 of 11

2 4. That upon information and belief defendant and at all times hereinafter mentioned, the "Opera" defendant, Metropolitan Opera House (herein after referred to as "Opera"), was an unincorporated business duly organized and existing under and by virtue of the laws of the State of New York. 5. Upon information and belief, that at all times hereinafter mentioned, defendant(s) "John Doe" is described as follows: a Caucasian male individual, who on June 15, 2016 at approximately 3:30 p.m., assaulted and battered the plaintiff from her seat # M11 behind with a "karate chop" to both shoulders at the premises located at 30 Lincoln Center Plaza, New York, New York as set forth below, during a performance of "Swan Lake". 6. Upon information and belief, that at all times herein mentioned, defendant "John Doe" was an agent, servant and/or employee of one or more of co-defendants, which are liable to the plaintiff under the doctrine of Respondent Superior. 7. Upon information and belief, that at all times hereinafter mentioned, defendant, Brian McCalister on June 15, 2016 at approximately 3:30 p.m., assaulted and battered the plaintiff from her seat # M11 behind with a "karate chop" to both shoulders at the premises located at 30 Lincoln Center Plaza, New York, New York as set forth below, during a performance of "Swan Lake". 8. Upon information and belief, that at all times hereinafter mentioned, defendant, Steven Gant on June 15, 2016 at approximately 3:30 p.m., assaulted and battered the plaintiff from her seat # M11 behind with a "karate chop" to both shoulders at the premises located at 30 Lincoln Center Plaza, New York, New York as set forth below, during a performance of "Swan Lake". 9. That at all times herein mentioned, defendant, "Lincoln", its agents, servants and/or employees owned a performing arts/opera house open to the general public known as and by, "The 3 2 of 11

3 Metropolitan Opera House", located at 30 Lincoln Center Plaza in the County, City and State ofnew York. 10. That at all times herein mentioned, defendant, "Lincoln", its agents, servants and/or employees operated a performing arts/opera house open to the general public, at the aforesaid 11. That at all times herein mentioned, defendant, "Lincoln", its agents, servants and/or employees managed a performing arts/opera house open to the general public, at the aforesaid 12. That at all times herein mentioned, defendant, "American", its agents, servants and/or employees owned a performing arts/opera house open to the general public known as and by, "The Metropolitan Opera House", located at 30 Lincoln Center Plaza in the County, City and State ofnew York. 13. That at all times herein mentioned, defendant, "American", its agents, servants and/or employees operated a performing arts/opera house open to the general public, at the aforesaid 14. That at all times herein mentioned, defendant, "American", its agents, servants and/or employees managed a performing arts/opera house open to the general public, at the aforesaid 15. That at all times herein mentioned, defendant, "Opera", its agents, servants and/or employees owned a performing arts/opera house open to the general public known as and by, "The Metropolitan Opera House", located at 30 Lincoln Center Plaza in the County, City and State ofnew York. 4 3 of 11

4 16. That at all times herein mentioned, defendant, "Opera", its agents, servants and/or employees operated a performing arts/opera house open to the general public, at the aforesaid 17. That at all times herein mentioned, defendant, "Opera", its agents, servants and/or employees managed a performing arts/opera house open to the general public, at the aforesaid 18. That this action falls within one or more of the exceptions set forth in Section 1602 of the CPLR. AS AND FOR A FIRST CAUSE OF ACTION ON BEHALF OF PLAINTIFF AGAINST DEFENDANTS 19. This Plaintiff repeats, reiterates and re-alleges each and every allegation contained in "17", inclusive, with the same force and effect as 20. That on the15th day of June, 2016, plaintiff was a lawful patron/invitee of the general public within the performing arts/opera house located at 30 Lincoln Center Plaza in the County, City and State of New York sitting in seat #M Upon information and belief, that at all times hereinafter mentioned, on June 15, 2016, defendant, "John Doe" was lawfully within the performing arts/opera house, at the aforesaid location sitting in or went to seat # N At that time and place, the defendant "John Doe", came into contact with the plaintiff, and inflicted upon her injuries hereinafter alleged. 5 4 of 11

5 23. Upon information and belief, that at all times hereinafter mentioned, on June 15, 2016, defendant, Brian McCalister was lawfully within the performing arts/opera house, at the aforesaid location sitting in or went to seat # N At that time and place, the defendant Brian McCalister, came into contact with the plaintiff, and inflicted upon her injuries hereinafter alleged. 25. Upon information and belief, that at all times hereinafter mentioned, on June 15, 2016, defendant, Steven Gant was lawfully within the performing arts/opera house, at the aforesaid location sitting in or went to seat # N At that time and place, the defendant Steven Gant, came into contact with the plaintiff, and inflicted upon her injuries hereinafter alleged. 27. That by reason of the foregoing, the plaintiff, sustained, serious, severe, permanent and protracted injuries, suffered great physical pain and mental anguish; was rendered sick, sore, lame and disabled and continue so to be; was permanently injured and was and will continue to be compelled to undergo medical expense and medical care and treatment; was, and is upon information and belief and will hereafter be incapacitated from her usual lifestyle and occupation; and was otherwise damaged. 28. That the occurrence and the injuries complained of herein were caused by the negligence of the defendants, their agents, servants and/or employees without any fault or negligence on the part of the plaintiff contributing thereto. 29. That as a result of the foregoing, plaintiff, Linda Kirsch, has been damaged in a sum that exceeds the jurisdictional amount of all lower courts which would otherwise have jurisdiction and punitive 6 5 of 11

6 AS AND FOR A SECOND CAUSE OF ACTION ON BEHALF OF PLAINTIFF AGAINST THE DEFENDANTS (Battery) 30. This Plaintiff repeats, reiterates and re-alleges each and every allegation contained in "28" inclusive, with the same force and effect as 31. At that time and place, the defendant "John Doe", intentionally, willfully and maliciously struck the plaintiff and pummeled her about the body, and inflicted upon her injuries hereinafter alleged. 32. At that time and place, the defendant Brian McCalister, intentionally, willfully and maliciously struck the plaintiff and pummeled her about the body, and inflicted upon her injuries hereinafter alleged. 33. At that time and place, the defendant Steven Gant, intentionally, willfully and maliciously struck the plaintiff and pummeled her about the body, and inflicted upon her injuries hereinafter alleged. 34. By reason of the foregoing, this plaintiff sustained serious, personal and, upon information and belief, permanent and protracted injuries, suffered great physical pain, mental anguish, psychological trauma and humiliation; was rendered sick, sore, lame and disabled and continues so to be; was and will continue to be confined to her bed and home; was compelled to undergo medical care and treatment; will be compelled to undergo medical and/or hospital care and treatment in the future; was and will continue to be compelled to expend sums of money for such 7 6 of 11

7 care and treatment; was and will continue to be incapacitated from her usual lifestyle, activities and was otherwise damaged. 35. The aforesaid acts and conduct of one or more of the aforesaid defendants were not in any way privileged or authorized and were committed wholly against this plaintiff's will and consent. 36. That as a result of the foregoing, this plaintiff, has been damaged in a sum that exceeds the jurisdictional amount of all lower Courts which would otherwise have jurisdiction and punitive AS AND FOR A THIRD CAUSE OF ACTION ON BEHALF OF THE PLAINTIFF AGAINST ALL DEFENDANTS (Assault) 37. This Plaintiff repeats, reiterates and re-alleges each and every allegation contained in "35" inclusive, with the same force and effect as 38. As a result of the foregoing, defendants intentionally, willfully and maliciously did place this plaintiff in fear of imminent harmful or offensive contact, and/or death or battery by the defendants. 39. That as a result of the foregoing, this plaintiff, has been damaged in a sum that exceeds the jurisdictional amount of all lower Courts which would otherwise have jurisdiction and punitive 8 7 of 11

8 AS AND FOR A FOURTH CAUSE OFACTION ON BEHALF OF THE PLAINTIFF AGAINST ALL DEFENDANTS (Prima Facie Tort) 40. This Plaintiff repeats, reiterates and re-alleges each and every allegation contained in "38" inclusive, with the same force and effect as 41. Defendants, by their intentional conduct and for the purpose of causing severe mental distress, recklessly conducted themselves in a manner including, but not limited to, assaulting, battering, beating, abusing, and terrorizing this plaintiff. 42. The aforesaid conduct of the defendants, were so outrageous and shocking that it exceeded all reasonable bounds of decency tolerated by the average member of the community. 43. The defendants intentionally caused this plaintiff to suffer severe emotional distress and severe physical and permanent injuries and damages as set forth above and said defendants acted, by their conduct, with reckless and utter disregard for the consequences that might follow. 44. The action on the part of defendants was intentional, willful and malicious giving rise to punitive 45. That as a result of the foregoing, this plaintiff, has been damaged in a sum that exceeds the jurisdictional amount of all lower Courts which would otherwise have jurisdiction and punitive 9 8 of 11

9 AS AND FOR A FIFTH CAUSE OF ACTION ON BEHALF OF THE PLAINTIFF AGAINST ALL DEFENDANTS (Intentional Infliction of Emotional Stress) 46. This Plaintiff repeats, reiterates and re-alleges each and every allegation contained in "45" inclusive, with the same force and effect as 47. Defendants, by their intentional conduct and for the purpose of causing severe mental distress, recklessly conducted themselves in a manner including, but not limited to, assaulting, battering, beating, abusing, and terrorizing this plaintiff. 48. The aforesaid conduct of one or more of the defendants was so outrageous and shocking that it exceeded all reasonable bounds of decency tolerated by the average member of the community. 49. The defendants intentionally caused this plaintiff to suffer severe emotional distress and severe physical and permanent injuries and damages as set forth above and said defendants acted, by their conduct, with reckless and utter disregard for the consequences that might follow. 50. The action on the part of defendants was intentional, willful and malicious giving rise to punitive 51. That as a result of the foregoing, this plaintiff, has been damaged in a sum that exceeds the jurisdictional amount of all lower Courts which would otherwise have jurisdiction and punitive 10 9 of 11

10 AS AND FOR AN SIXTH CAUSE OF ACTION ON BEHALF OF THE PLAINTIFF AGAINST ALL DEFENDANTS (Negligence) 52. This Plaintiff repeats, reiterates and re-alleges each and every allegation contained in "50" inclusive, with the same force and effect as 53. At the aforementioned time and place, defendants, negligently, carelessly and/or recklessly made contact with this plaintiff causing him to be injured. 54. By reason ofthe foregoing, this plaintiffunintentionally sustained serious, personal and, upon information and belief, permanent and protracted injuries and other 55. The occurrence complained of herein was wholly and solely as a result of the negligence, carelessness and/or recklessness of the defendants without any fault, want of care, negligence or culpable conduct on this plaintiff contributing thereto. 56. That as a result of the foregoing, this plaintiff, has been damaged in a sum that exceeds the jurisdictional amount of all lower Courts which would otherwise have jurisdiction and punitive AS AND FOR A SEVENTH CAUSE OF ACTION ON BEHALF OF THE PLAINTIFF AGAINST ALL DEFENDANTS (Negligent infliction of Emotional Distress) 57. This Plaintiff repeats, reiterates and re-alleges each and every allegation contained in "55" inclusive, with the same force and effect as of 11

11 58. Defendants had a duty and obligation to retain from endangering the plaintiff's safety and/or causing the plaintiff to fear for her physical safety. 59. Defendants violated said duty when at the aforementioned time and place he negligently, carelessly and/or recklessly held and struck the plaintiff and threatened her life. 60. By reason of the foregoing, the plaintiff sustained serious, personal and, upon information and belief, permanent and protracted injuries and other damages as set forth above. 61. The complained of occurrence happened wholly and solely as a result of the negligence, carelessness and/or recklessness of these defendants without any fault, want of care, negligence or culpable conduct on the part of the plaintiff and the plaintiff contributing thereto. 62. That as a result of the foregoing, this plaintiff, has been damaged in a sum that exceeds the jurisdictional amount of all lower Courts which would otherwise have jurisdiction and punitive WHEREFORE, plaintiff, Linda Kirsch, demands judgment against the defendants, for compensatory damages on all causes of action and punitive damages, all together with the costs and disbursements of this action. Dated: New York, New York July 6, 2018 Antin, Ehrlich & Epstein, LLP Attorneys for Plaintiff 37th 49 West 37 street, 7th F1 New York, New > (212) f r By: tt W. Epstein of 11