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1 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd, 11th & 13th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., ALIOTTA and ELLIOT, JJ SANTOS DeJESUS, as Administrator of the Estate of SAMMY DeJESUS, Deceased, and SANTOS DeJESUS, Individually, Respondent, -against- November 25, 2014 GOLDFINGERS, GOLDFINGERS CLUB NEW YORK and PULSE NITE CLUB, INC., -and- Appellants, ANDREW RODRIGUEZ, Defendants. DECIDED Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered April 30, The order, insofar as appealed from, denied a motion by defendants Goldfingers, Goldfingers Club New York and Pulse Nite Club, Inc. for summary judgment dismissing so much of the complaint as was asserted against them.

2 ORDERED that the order, insofar as appealed from, is affirmed, without costs. On January 30, 2009, plaintiff s decedent, Sammy DeJesus, sought admission to a gentlemen s club owned and operated by defendants Goldfingers, Goldfingers Club New York and Pulse Nite Club, Inc. (collectively Goldfingers). Because he appeared to be in an intoicated condition, the club s bouncer, Richard Ingrassias, refused to permit DeJesus to enter the club and enlisted the assistance of a patron of the club, defendant Andrew Rodriguez, to escort DeJesus outside. A physical altercation between Rodriguez and DeJesus ensued, and Rodriguez struck DeJesus, causing DeJesus to fall down a flight of stairs located outside the club, ultimately resulting in DeJesus s death on February 2, Plaintiff Santos DeJesus, the decedent s father, commenced this action as administrator of his son s estate and on behalf of himself, individually, against Goldfingers, Rodriguez, and BCR Associates, LLC (an out-of-possession landlord of the subject premises) to recover damages for personal injuries, wrongful death, and loss of services, alleging, among other things, negligence based on improper and inadequate security, as well as negligent hiring, retention and supervision. After Rodriguez failed to appear or answer, plaintiff moved for the entry of a default judgment against him. The motion was granted by order dated March 24, 2010 (Patricia P. Satterfield, J.). The

3 amount of the judgment against Rodriguez was to be determined at the time of the trial of the remaining defendants. By order entered March 5, 2012, the Civil Court (Anna Culley, J.) granted a motion by BCR Associates, LLC for summary judgment dismissing so much of the complaint and any cross claims that were asserted against it. Thereafter, the Goldfingers defendants moved for summary judgment dismissing so much of the complaint as was asserted against them, submitting, in support of the motion, an attorney s affirmation as well as transcripts of the deposition testimony of Rodriguez and of Robert Ros who was, at the time of the incident, Goldfingers s general manager. The Goldfingers defendants argued, among other things, that they had no duty to protect plaintiff s decedent from the sudden and unforeseen act of Rodriguez; that they had provided reasonable security measures at the club; and that they could not be held vicariously liable for the conduct of Rodriguez, who was a patron of the club, or Ingrassias, who was alleged by Ros to be an independent contractor. Plaintiff submitted an attorney s affirmation in opposition to the motion. The Goldfingers defendants appeal from so much of an order entered April 30, 2013 as denied their motion. We affirm. The court s role on a motion for summary judgment is to determine whether there is a material factual issue to be tried, not to resolve it (Sillman v Twentieth

4 Century-Fo Film Corp., 3 NY2d 395, 404 [1957]), as issue-finding, rather than issuedetermination, is the key to the procedure (id.). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by presenting evidence, in admissible form, demonstrating the absence of any material issues of fact (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party (CPLR 3212 [b]). The Civil Court properly denied the Goldfingers defendants motion for summary judgment, as they did not tender sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324). The deposition testimony of Robert Ros, upon which they relied, was conclusory regarding the employment status of Ingrassias. Furthermore, the deposition testimony of both Ros and Rodriguez raised issues of fact as to the sufficiency of the security staff at the time of the incident. Accordingly, the order, insofar as appealed from, is affirmed. Pesce, P.J., Aliotta and Elliot, JJ., concur.

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