FILED: NEW YORK COUNTY CLERK 11/12/2013 INDEX NO. 160509/2013 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 11/12/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORIC -X RYAN S. KLARBERG, Index No. /2013 -against- Plaintiff, COMPLAINT VICTORIA GROSSMAN, THE AMBER AVALON CORP. d/b/a HOTEL CHANTELLE, and JOHN DOES 1-10, Defendants. -X Plaintiff Ryan S. Klarberg, by his attorneys, Buchanan Ingersoll & Rooney PC, as and fot his Complaint against the Defendants, respectfully alleges: INTRODUCTION This action arises out of an intentional, violent assault by defendant Victoria Grossman ("Grossman") against plaintiff Ryan S. Klarberg ("Klarberg") in the early morning hours of January 12, 2013, at Hotel Chantelle ("Hotel Chantelle"), a bar in New York's Lower East Side. 2. In the early morning of January 12, 2013, Grossman spilled her drink on Klarberg in Hotel Chantelle, and a confrontation ensued. Klarberg walked away from Grossman, at which point Grossman blindsided Klarberg from behind by striking her glass against Klarberg's face with such force that the glass broke. The violent assault continued when Grossman swung again at Klarberg, this time with the sharpened, broken glass, severing an artery in Klarberg's face and causing him permanent injury described herein, including, but not limited to, facial paralysis. 3. Grossman has admitted that Klarberg did nothing to deserve the vicious assault which he suffered on January 12, 2013. The assault never should have happened - Grossman was clearly and visibly intoxicated during the time leading up to the assault, and Hotel Chantelle should not have 1
continued (and was legally bound not to continue) to serve her alcohol. Furthermore, at no rime did any Hotel Chantelle employee intervene in the escalating conflict between Klarberg and the intoxicated Grossman, as a result of which the confrontation escalated out of control and Klarberg was maliciously and permanendy injured. 4 As a result of Grossman's vicious attack on Klarberg at Hotel Chantelle, Klarberg suffered permanent and visible physical injury, and irreparable psychological damage and emotional distress. By this action Klarberg seeks compensation for these injuries. THE PARTIES Plaintiff Ryan S. Klarberg is an individual residing in the State of New York, New York County. 6. Defendant Victoria Grossman is an individual residing in the State of New York, Westchester County, at 260 North Street, Rye, New York 10580. Defendant The Amber Avalon Corp. ("Avalon Corp.") d/b/a Hotel Chantelle is a New York Corporation with an address at 92 Ludlow Street, New York, New York 10002. 8. Upon information and belief, at all times described herein, Avalon Corp. was the owner and operator of Hotel Chantelle. 9. John Does 1-10 are yet-to-be identified employees or agents of Hotel Chantelle who furnished alcohol to Grossman, and who were responsible for crowd control, admission at Hotel Chantelle, who acted as bouncers, or who were tasked with patron security or other similar functions Hotel Chantelle on the night of the assault. 10. This action falls within one or more of the exceptions set forth in NY CPLR 1602. FACTS COMMON TO ALL CAUSE OF ACTION 11. This action arises out of an intentional assault by Grossman against Klarberg at Hotel Chantelle shordy before 2:30 a.m. on January 12, 2013. 2
Grossman's Assault ofklarberg 12. Hotel Chantelle describes itself as a "neighborhood venue" on New York's Lower East Side where patrons can plan their next move "in the city that never sleeps." Hotel Chantelle (which is not an actual hotel) encompasses two bars: The Lobby, which boasts of a robust cocktail list, and SGTS, where "in-the-know" patrons can slip downstairs for a "dance party that goes into the wee hours of the morning." It was in the wee hours of just such a morning, on January 12, 2013, when Grossman attacked Klarberg. 13. On the night of January 11, 2013, and into the early morning of January 12, 2013, Grossman partied with friends at Hotel Chantelle and drank alcohol. Leading up to and at the time of her assault on Klarberg, Grossman was visibly intoxicated. Despite the fact that agents or employees knew or reasonably should have known that Grossman was intoxicated, and visibly so, the agents or employees of Hotel Chantelle continued to sell alcoholic beverages to Grossman and permitted her to stay on the premises. 14. Just before 2:30 in the morning on January 12, 2013, Grossman, in an intoxicated state. bumped into Klarberg at Hotel Chantelle, and spilled a portion of her drink all over Klarberg. 15. After Grossman spilled her drink on Klarberg, Klarberg asked Grossmann if she was aware that she just spilled her drink on him. Grossman told Klarberg that she was not aware of her actions and told Klarberg to buy her another drink. 16. After Klarberg requested that Grossman apologize for spilling her drink on Klarberg, the confrontation escalated. 17. Klarberg and Grossman continued arguing, and Grossman threw the remaining contents of her drink into Klarberg's face. 18. Employees of Hotel Chantelle either witnessed or should have witnessed Grossman splash the remainder of her drink on Klarberg but failed to take any action whatsoever. 3
19. After Grossman threw the remainder of her drink in Klarberg's face, the parties' confrontation escalated further, and Klarberg spurted some of his drink on Grossman. 20. Employees of Hotel Chantelle either witnessed or should have witnessed Klarberg splash his drink on Grossman but failed to intervene or take any action whatsoever to end the confrontation. 21. Believing that the confrontation was over, Klarberg turned around and walked several steps towards the exit away from Grossman. Unbeknownst to Klarberg, however, an intoxicated Grossman followed him. 22. Employees of Hotel Chantelle either witnessed or should have witnessed Grossman follow Klarberg but took no action to intervene. 23. As Grossman chased after Klarberg, she grabbed him, turned him around while raising a glass in her other hand, and swung the glass directly at Klarberg's face. 24. Before Klarberg had time to react, Grossman blindsided Klarberg and struck him on the right side of his face. 25. Employees of Hotel Chantelle either witnessed or should have witnessed Grossman strike Klarberg but failed to take any action to stop the conflict or to subdue or stop Grossman from continuing her attack on Klarberg. 26. As a result of the force with which Grossman initially struck Klarberg, Grossman's glass broke in her hand, transforming the glass into a dangerously sharp object which Grossman used to continue her assault. 27. After striking Klarberg once, Grossman raised her (now broken) glass a second time, and again swung at Klarberg, again striking him in the right side of his face less than one inch from his right eye. 28. Employees of Hotel Chantelle either witnessed or should have witnessed Grossman 4
strike Klarberg a second time but failed to take any action to stop the conflict, to subdue or stop Grossman from continuing her attack on Klarberg. 29. Upon striking Klarberg in the face a second time with the glass, Grossman realized that she caused significant injury to Klarberg. 30. Upon seeing the extent of the injury caused to Klarberg's face, Grossman fled Hotel Chantelle without being stopped by Hotel Chantelle employees, leaving Klarberg as he grabbed the laceration with his hands with blood covering his face. 31. Employees of Hotel Chantelle either witnessed or should have witnessed Grossman flee after she struck Klarberg a second time but failed to take any action to stop Grossman from escaping Hotel Chantelle. Klarberg's Injuries 32. The resulting injury to Klarberg was significant. Grossman struck Klarberg with such force that she caused a laceration in his face that was deep enough that his facial muscles were visible. When Grossman struck Klarberg's face with the glass, she also severed his facial artery, causing significant injury and blood loss. 33. Klarberg was immediately transported via an emergency ambulance to a hospital, where fifty-five stitches were required to seal the wound. Twenty-five stitches were required to seal the inside of Klarberg's face, where Grossman severed Klarberg's artery, and thirty stiches were required to seal the outside of Klarberg's face, to seal the wound. 34. The stitches leave a permanent and disfiguring scar over Klarberg's face, which is visible to any person who looks at Klarberg. 35. After the assault, Klarberg was diagnosed with facial paralysis. The facial paralysis occurred because Grossman struck Klarberg with such force that she severed nerves in Klarberg's face. As a result of this paralysis, Klarberg can no longer move his right eyebrow. 5
36. Klarberg's injuries are ongoing. On a nearly weekly basis Klarberg sits with a physical therapist who performs electric muscle stimulation. During this therapy hundreds of electrical shocks are sent into Klarberg's face, in the hope that Klarberg regains movement on the right side of his face. 37. Klarberg carries the pain from Grossman's assault on a daily basis. As a result of Grossman's assault, Klarberg has a four-inch, highly visible scar on the right side of his face a halfinch from his eye. Klarberg engaged a psychiatrist since Grossman struck him to help alleviate some of the emotional distress, pain and suffering, post-traumatic stress disorder and physical pain caused by the assault. As a result of the location of the scar, every time Klarberg looks in the mirror, he is reminded about the injury and Grossman's attack, every day of his life. 38. As a continuing part of his treatment, every single morning Klarberg applies prescription steroid cream to his face, and on top of that applies medicated sunscreen that his surgeon provided to him. Klarberg has been informed that for the next several years of his life, he cannot be exposed to the sun. 39. When Klarberg returns home at night, Klarberg removes the sunscreen and prescription steroid cream and applies another silicone-based medicine. 40. When Klarberg visits his doctor, his doctor injects steroids directly into the scar with a needle. 41. Klarberg's emotional and psychological harm is ongoing. Grossman's Plea of Guilty to Criminal Charges Klarberg. 42. As a result of her actions, Grossman was arrested and indicted for felony assault on 43. On October 2, 2013, Grossman plead guilty in the Supreme Court of the State of New York, County of New York, Criminal Term (Indictment 3260/2013) to the conduct alleged herein. 44. During her plea allocution Grossman admitted that in the early morning of January 12, 6
2013, Grossman intentionally caused physical injury to Klarberg and recklessly caused physical injury to Klarberg by means of a sharp object. 45. Grossman entered a plea of guilty to Assault in the Second Degree, a class D violent felony under Penal Law section 120.05, subdivision 2, and Assault in the Second Degree, a class D violent felony under Penal Law section 120.05, subdivision 4. A true and accurate copy of Grossman's plea allocution is attached hereto at Exhibit 1. AS AND FOR A FIRST CAUSE OF ACTION fbatteryl 46. Plaintiff repeats, reiterates, re-alleges and incorporates by reference each and every 47. As described herein, in the early morning of January 12, 2013, Grossman made intentional, wrongful and offensive contact with Klarberg by striking him twice in the face with an empty glass. 48. Grossman intended to commit battery upon Klarberg. 49. Grossman intended to make and did make physical, wrongful contact with Klarberg. battery. 50. By virtue of the foregoing Grossman is liable for money damages to Klarberg for AS AND FOR A SECOND CAUSE OF ACTION (ASSAULT! 51. Plaintiff repeats, reiterates, re-alleges and incorporates by reference each and every 52. As described herein, in the early morning of January 12, 2013, Grossman made intentional, wrongful and offensive contact with Klarberg by striking him twice in the face with an 7
empty glass. 53. Grossman intended to make and did make physical, wrongful contact with Klarberg. 54. Grossman intended to and did place Klarberg in fear of imminent harmful contact by following Klarberg and then striking Klarberg twice in the face with an empty glass. assault. 55. By virtue of the foregoing Grossman is liable for money damages to Klarberg for AS AND FOR A THIRD CAUSE OF ACTION ^NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS^ 56. Plaintiff repeats, reiterates, re-alleges and incorporates by reference each and every 57. As alleged herein Grossman committed acts which Grossman knew, or should have known, would endanger Klarberg. 58. As alleged herein Grossman committed acts which Grossman knew, or should have known, placed Klarberg in imminent fear for his physical safety. 59. As a result of Grossman's actions, Klarberg suffered mental and physical injury for which Klarberg is entitled to money damages. AS AND FOR A FOURTH CAUSE OF ACTION (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS^ 60. Plaintiff repeats, reiterates, re-alleges and incorporates by reference each and every 61. Grossman's conduct alleged herein is extreme and outrageous conduct. 62. Grossman acted with intent to cause Klarberg severe emotional distress. 63. Alternatively, Grossman acted with disregard of a substantial probability of causing 8
Klarberg severe emotional distress. 64. As a result of Grossman's actions Klarberg suffered severe emotional distress, which is manifest by physical symptoms for which Klarberg has sought and received treatment. 65. Klarberg is entided to money damages for the harm caused by Grossman. AS AND FOR A FIFTH CAUSE OF ACTION fnegligence^ 66. Plaintiff repeats, reiterates, re-alleges and incorporates by reference each and every 67. On the night of the assault described herein, Grossman breached a duty owed to Plaintiff by becoming intoxicated and refrain from assaulting him. 68. As a proximate cause of Grossman's breach of duties owed to Plaintiff, Grossman became intoxicated and assaulted Plaintiff, causing Plaintiff injury. 69. On the night of the assault described herein, Grossman breached a duty owed to Plaintiff by engaging in a confrontation with Plaintiff while Grossman was in a state of intoxication. 70. As a proximate cause of Grossman's breach of duties owed to Plaintiff, Grossman assaulted Plaintiff, causing Plaintiff injury. 71. Grossman breached a duty to Plaintiff by physically assaulting Plaintiff as described herein. 72. Plaintiff is entitled to money damages against Grossman. 73. The acts by Grossman alleged herein were taken with extreme malice toward Klarberg. 74. As alleged herein Grossman acted with wanton and reckless disregard of Klarberg's rights and well-being. 75. As alleged herein Grossman acted intentionally and willfully in causing injury to 9
Klarberg. 76. Plaintiff is entitled to punitive damages from Grossman. AS AND FOR A SIXTH CAUSE OF ACTION (NY GOL ll-lott 77. Plaintiff repeats, reiterates, re-alleges and incorporates by reference each and every 78. As alleged herein. Plaintiff was injured by an intoxicated person, Grossman. 79. Avalon Corp. unlawfully caused and contributed to Grossman's intoxication by knowingly selling an alcoholic beverage to Grossman, who was visibly intoxicated, in violation of the New York Alcoholic Beverage Control Law, 65. 80. Avalon Corp.'s unlawful service of alcohol to Grossman caused and contributed to Plaintiff s injuries alleged herein. 81. Plaintiff is entitled to actual and exemplary damages from Avalon Corp. AS AND FOR AN SEVENTH CAUSE OF ACTION (NEGLIGENCES 82. Plaintiff repeats, reiterates, re-alleges and incorporates by reference each and every 83. Avalon Corp. owed a duty to Plaintiff to institute policies and procedures, including, without limitation, proper training of its employees, to ensure that confrontations such as the confrontation between Plaintiff and Grossman did not escalate to the level of a physical assault. 84. Avalon Corp. owed a duty to Plaintiff to institute policies and procedures to properly instruct its alcohol servers not to serve alcoholic beverages to visibly intoxicated persons. 85. On the night of Grossman's assault of Plaintiff, Avalon Corp. breached its duties to 10
Plaintiff by playing music at excessive levels, which prevented personnel at Hotel Chantelle from adequately assessing and responding to situations such as the incident between Plaintiff and Grossman. 86. On the night of Grossman's assault of Plaintiff, Avalon Corp. failed to employ sufficient staff to adequately control the crowd at Hotel Chantelle or to prevent assaults such as Grossman's assault of Plaintiff. 87. On the night of Grossman's assault of Plaintiff, Avalon Corp. failed to provide lighting sufficient to ensure that security personnel could properly assess and respond to crowd situations such as Grossman's assault of Plaintiff. 88. On the night of Grossman's assault of Plaintiff, Avalon Corp. allowed the bar to be too dark so that its personnel could not properly assess and respond to crowd situations and failed to protect its patrons. 89. On the night of Grossman's assault of Plaintiff, Avalon Corp. failed to have a system in place to stop verbal disputes and to stop disputed from escalating, such as the instant dispute which res ulted in Kalrberg's permanent injuries. 90. On the night of Grossman's assault of Plaintiff, Avalon Corp. failed to control the noise in the bar which interfered with Hotel Chantelle's ability to properly protect its patrons. 91. On the night of Grossman's assault of Plaintiff, Avalon Corp. failed to limit the number of patrons admitted to the bar causing overcrowing and which interfered with Hotel Chantelle's ability to properly protect its patrons. 92. Avalon Corp. failed to intervene in the oral dispute between Grossman and Plaintiff prior to the escalation of the oral dispute into an assault. 93. Avalon Corp. failed to stop Grossman from fleeing Hotel Chantelle upon her striking Plaintiff in the face two times with the glass. 11
94. Avalon Corp. failed to establish and/or enforce policies and procedures related to the secu rity of patrons that would have prevented Grossman's assault of Plaintiff. 95. Avalon Corp. failed to recognize the instant escalating dispute. 96. Avalon Corp. breached its duties to Plaintiff by failing to institute proper policies and procedures, and by failing to adequately train its employees. 97. Avalon Corp. breached its duties to Plaintiff by failing to institute proper policies and procedures, and by failing to adequately supervise its employees. 98. Avalon Corp.'s breaches of its duties to Plaintiff described herein contributed to and caused damages to Plaintiff stemming from Grossman's assault on Plaintiff. 99. Avalon Corp.'s breaches of its duties to Plaintiff by failing to take appropriate measures and by negligently allowing the instant assault to occur. 100. As a result of Avalon Corp.'s breaches and failures, Klarberg was permanently injured and disfigured. 101. Plaintiff is entitled to money damages against Avalon Corp. AS AND FOR A EIGHTH CAUSE OF ACTION (NEGLIGENCES 102. Plaintiff repeats, reiterates, re-alleges and incorporates by reference each and every 103. Upon information and belief, on the night of Grossman's assault of Plaintiff, Hotel Chantelle employed one or more individuals whose identities are unknown to Plaintiff, to act as bouncers, crowd control supervisors, or whose duties otherwise included maintaining orderly conduct by patrons at Hotel Chantelle on the night of Grossman's assault of Klarberg. 12
104. On the night of Grossman's assault of Plaintiff, Hotel Chantelle employed bartenders or servers who served alcoholic beverages to Grossman (together with the individuals described in paragraph 84, the "John Does"). 105. The John Does breached duties owed to Plaintiff by failing to maintain adequate crowd control on January 12, 2013, insofar as the John Does failed to intervene in the escalating conflict between Plaintiff and Grossman. 106. The John Does breached duties owed to Plaintiff by continuing to serve Grossman alcoholic beverages, even after she became visibly intoxicated. 107. The John Does' breached duties owed to Plaintiff by allowing Grossman to flee Hotel Chantelle after she struck Plaintiff without being stopped. 108. The John Does' breaches of their duties owed to Plaintiff contributed to and caused Plaintiffs injuries described herein. 109. Plaintiff is entitled to money damages against John Does. 110. Avalon Corp. is vicariously liable for damages caused to Plaintiff. 13
CONCLUSION WHEREFORE, Plaintiff demands: (i) judgment in an amount to be determined at trial, which amount that exceeds the minimal jurisdictional threshold of this Court; (ii) (iii) (iv) w (vi) punitive damages; exemplary damages; interest allowed by law; a trial by jury on all causes of action alleged herein; and such other and further relief as this Court deems just and proper or that is allowable under the laws of the State of New York. Dated: New York, New York November 12, 2013 BUCHANAN INGERSOLL & ROONEY PC By: Stuart P. Slotnick, Esq. Cameron E. Grant, Esq. 1290 Avenue of the Americas, 30 th Floor New York, New York 10104 Telephone (212) 440-4400 Attorneys for Plaintiff Klarberg 14
ATTORNEY CERTIFICATION PURSUANT TO 22NYCRR 130-1.la Pursuant to 22 NYCRR130-1.la, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief, and after reasonable inquiry, the contentions contained in the annexed document(s) are not frivolous. Dated: November 12, 2013 Signature: Print Signer's Name: Cameron E. Grant