Preview
FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
----------------------------------------------------------------------X
LEONARD J. CANORA, Index No.: 20816/2020
Plaintiff,
AFFIRMATION IN
OPPOSITION
-against-
RAMBLING HOUSE INC., JOSEPH KRIPP and
THOMAS DRAGO,
Defendants.
------------------------------------------------------------------------X
RICHARD E. NOLL, an attorney duly admitted to practice law in the Courts of
the State of New York, hereby affirms the truth of the following under the penalties of perjury:
1. I am a member of the Noll Law Firm, attorneys for the plaintiff, LEONARD J.
CANORA, in the above captioned matter, and I am fully familiar with the facts and circumstances
herein contained, the source of my knowledge and information, based upon the contents of the file
maintained in this office.
2. This affirmation is submitted in opposition to the motion made by defendant,
RAMBLING HOUSE INC, for an Order pursuant to CPLR 3212 dismissing plaintiff’s complaint
as to the moving defendant. It is respectfully submitted that this Court deny defendant
RAMBLING HOUSE INC.’s, motion, in its entirety, because the defendant has failed to establish
its prima facie entitlement to summary judgment, as a matter of law. Moreover, even if the
defendant could demonstrate its prima facie entitlement to summary judgment, the motion must
still be denied as numerous triable issues of fact exist.
1 of 16
FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022
3. As will be fully set forth below, the plaintiff was caused to sustain severe,
permanent personal injuries on March 23, 2019, at the premises/bar located at, 4292 Katonah
Avenue, Bronx, New York, wherein defendant RAMBLING HOUSE INC., (hereinafter
“RAMBLING HOUSE” ) was a tenant, when plaintiff was removed, thrown to the floor, stomped
on and dragged out of the door, without warning, at the request of moving defendant RAMBLING
HOUSE, by their bouncers/security guards/employees defendants, JOSEPH KRIPP and
THOMAS DRAGO.
PROCEDURAL HISTORY
4. This subject lawsuit was commenced by the filing of a Summons and Complaint
on or about January 16, 2020, and Supplemental Summons and Complaint on August 12, 2021.
See moving defendant’s motion Exhibit “A”, Exhibit “F”, Exhibit “K”). Defendant served an
Answer on or about April 7, 2020. (See moving defendant’s motion Exhibit “B”). Default
Judgments have been entered against non-appearing defendants Joseph Kripp and Thomas
Drago. Annexed hereto as Exhibit “1” are copies of the same.
PRELIMINARY STATEMENT
5. This matter arises from an incident that occurred on March 23, 2019, at the bar
known as RAMBLING HOUSE when plaintiff, who was at the bar finishing a drink, was brutally
and without warning ejected from the establishment at the direction of defendant RAMBLING
HOUSE. As will be set forth fully below, defendant RAMBLING HOUSE directed the removal
of plaintiff from the premises with undue and unnecessary force, directed the manner and method
of when and how to remove a patron, failed to use reasonable care in removing plaintiff from
the premises, in removing plaintiff in such a manner that to caused him to fall to the ground, failed
to properly train educate, supervise and manage the bouncers and security at the premises, and
2 of 16
FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022
allowed the bouncers and security to use excessive force in removing plaintiff from the premises.
As set forth fully below, the defendant RAMBLING HOUSE, through their witness, manager Tara
Carty, admitted they controlled the manner and method in which the bouncers/security guards
removed patrons, and had the final say to stop the subject incident, including the manner in which
plaintiff was being ejected but failed to do so.
RELEVANT DEPOSITION TESTIMONY OF THE PARTIES
PLAINTIFF, LEONARD J. CANORA
6. Plaintiff, testified at an examination before trial on December 2, 2020. (Transcript
annexed to moving defendant’s motion, Exhibit “D”). The moving defendant submits only the
unsigned deposition transcript of the plaintiff. Plaintiff’s errata sheet annexed hereto to plaintiff’s
opposition as Exhibit “2”. The incident occurred on March 23, 2019, at approximately 4p.m.,
inside the defendant’s bar (Exhibit “D”, p. 25-26,32). Prior to going to Rambling House plaintiff
had not consumed any alcohol (Exhibit “D”, p.31-32).
7. The incident started inside the bar when plaintiff felt himself suddenly picked up
and dragged towards the front door, pushed and shoved by two male bouncers without warning
(Exhibit “D”, p.32-33). One of the bouncers was behind plaintiff and the other one to the side right
of his shoulder (Exhibit “D”, p.32). Plaintiff did not know why he was being picked up (Exhibit
“D”, p.33).
8. When security took plaintiff, they pushed and shoved him, carried him towards the
front door and in the process of doing so one of the guards put his arm around plaintiff’s neck and
the guy behind him pushed plaintiff towards the floor (Exhibit “D”, p.34-36). Plaintiff fell face
first onto the ground, and the bouncer stepped/stomped on his left leg while he was on the ground
3 of 16
FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022
(Exhibit “D”, p.34-36). After being thrown to the ground and stomped on plaintiff could not get
up, and the bouncers dragged plaintiff towards the front door, and threw him onto the street
(Exhibit “D”, p.37-38).
9. Prior to being ejected, plaintiff paid and settled his bill and was finishing his drink
(Exhibit “D”, p.41-42). At no point did any employee tell plaintiff why he was being thrown out
(Exhibit “D”, p.43). Plaintiff went to the police department and reported the incident (Exhibit “D”,
p.45,48).
10. Plaintiff was shown the report of the investigating police officer (Exhibit “D”,
p.56). Plaintiff disagreed with the officer’s interpretation of the video footage (Exhibit “D”, p.57).
Plaintiff disagreed with the statements in the investigation report (Exhibit “D”, p.58). Plaintiff
was shown the indoor video and identified the moment the bouncer stomped on his leg while he
was on the floor (Exhibit “D”, p.60-65).
DEFENDANT RAMBLING HOUSE
11. Ms. Tara Carty, testified on behalf of defendant, RAMBLING HOUSE at an
examination before trial on March 1, 2021. (Transcript annexed to moving defendant’s motion,
Exhibit “H”). At the time of plaintiff’s accident, Ms. Carty was the manager of the defendant’s
bar/restaurant/event space known as THE RAMBLING HOUSE located at 4292 Katonah Avenue,
Bronx, New York (Exhibit H, p.8-9).
12. Ms. Carty directed the bouncer Tommy to keep an eye on plaintiff (Exhibit H,
p.41). House policy is that it is always the managers decision to make the final call if someone
should be removed (Exhibit “H”, p.48). On the day in question Ms. Carty made the final decision
to get rid of plaintiff (Exhibit H”, p.48).
4 of 16
FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022
13. Ms. Carty went to the bouncer Tommy Drago and told him that plaintiff was given
his check (Exhibit “H”, p.49). 10-15 minutes later, Ms. Carty felt plaintiff was taking to long to
finish his drink and went and got the bouncer (Exhibit “H”, p.50).
14. At no point did plaintiff strike any of the bouncers (Exhibit “H”, p.57). Plaintiff
made no physical moves to resist leaving (Exhibit “H”, p.58). Tommy Drago and another security
guard Joseph Kripp approached plaintiff (Exhibit “H”, p.54,56). Ms. Carty thereafter saw that
plaintiff and two bouncers had “tumbled” on the floor (Exhibit “H”, p.55-57). Ms. Carty testified
that it’s their house policy to rarely escort people out and to not use physical force unless the
bouncer or patrons are threatened (Exhibit “H”, p.62). Ms. Carty did not see plaintiff threaten any
patrons (Exhibit “H”, p.62). Nevertheless, Ms. Carty testified that once plaintiff was on the floor
plaintiff was a physical threat (Exhibit “H”, p.63). Ms. Carty admitted stepping on a patron’s leg
could be justified if the patron was acting out (Exhibit “H”, p.64).
15. Ms. Carty would tell the bouncers that if they didn’t know how to handle something
to come and get her. Ms. Carty is a control person at the bar and if she sees the security/bouncers
do something that she’s not comfortable with she will tell the bouncers that she doesn’t want them
doing that (Exhibit “H”, p.72). Bouncers never remove patrons unless Ms. Carty directs them to
do so (Exhibit “H”, p.73).
16. No written agreement existed between Tommy and the other bouncers and moving
defendant (Exhibit “H”, p.73-74). Everyone was paid in cash (Exhibit “H”, p.74). They wore a
RAMBLING HOUSE shirt (Exhibit “H”, p.75). Bouncer Joseph had been working approximately
a year (Exhibit “H”, p.65-66) and it’s a part-time job for him. Tommy Drago has been doing
security for the bar for two years and provides personnel (Exhibit “H”, p.67). The defendant would
pay him in cash per shift (Exhibit “H”, p.67). Tommy had worked at the bar for many years even
5 of 16
FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022
before it had changed names. (Exhibit “H”, p. 69-70) The owners of the bar told Tommy what
their expectations are as far as how to handle patrons (Exhibit “H”, p.70-71).
THE DEFENDANT HAS FAILED TO MEET ITS PRIMA FACIE
ENTITLEMENT TO SUMMARY JUDGMENT
17. In making a motion for summary judgment, the initial burden is on the moving
party to make a “prima facie showing of its entitlement; absent such a showing the motion is to be
denied regardless of the insufficiency of the opposing papers.” Holtz v. Niagra Mohawk Power
Corp., 147 A.D.2d 857, (3rd Dept. 1989). The proponent of a summary judgment motion must
tender evidentiary proof in admissible form eliminating any material issues of fact from the case.
The failure to make that showing requires the denial of the motion regardless of the sufficiency of
the opposing papers. See, Mastrangelo v Manning, 17 A.D.3d 326 (2nd Dept. 2005).
18. If the proponent succeeds, only than does the burden shift to the party opposing the
motion, who then must show the existence of material issues of fact by producing evidentiary proof
in admissible form, in support of his position. See. Zuckerman v. City of New York, 49 N.Y.2d
557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980). Summary judgment is a drastic remedy and
“should not be granted where there is any doubt as to the existence of a material and triable issue
of fact’. Jablonski v. Rapalje, 14 A.D.3d (2nd Dept. 2005). Issue finding, rather than issue
determination constitutes the key to the procedure. Anyanwu v. Johnson, 276 A.D.2d 572 (2nd
Dept. 2000).
19. Here, the moving defendant has clearly failed to establish its prima facie
entitlement to summary judgement as against it as a matter of law. In support, the defendant
submits the unsigned deposition transcript of the plaintiff. See, Pina v. Flik International Corp., 25
A.D.3d 772 (2nd Dept, 2006). CPLR 3116(a) generally requires that the party submitting a
6 of 16
FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022
deposition transcript in support of summary judgment motion establish that the transcript was
either signed by the deponent or that the transcript was sent to the deponent for correction, and it
was not signed and returned within 60 days. Movant’s failure to show proof that the unsigned
deposition transcript, submitted in support of motion, had been previously forwarded to relevant
witness pursuant to CPLR 3116 renders transcript not admissible.
20. Moreover, the defendant annexes the deposition transcript of Ms. Carty, the
manager of the defendant’s bar, which as discussed below, demonstrates that the bouncers/security
guards were employees acting within the scope of their employment when they assaulted/removed
plaintiff, and/or at a minimum, that even if deemed independent contractors, the defendant
exhibited control over the manner/methods they performed their duties and is thus liable for their
actions. Ms. Carty admits that she controlled the bouncers, was the final say in all removals, and
controlled the methods of removal, even going as far as admitting that stepping on a patron’s leg
was permissible.
21. The defendant also erroneously contends the submitted video footage of the
incident establishes no incident occurred. Indeed, the video documents plaintiff’s incident occurred
in the very manner plaintiff alleges, however, at a minimum creates a question of fact as to the
interpretation of the incident that cannot be decided on a summary judgment motion.
22. With regard to the self-serving affidavit of Rory Dolan, bar owner, wherein he
makes unsubstantiated conclusory assertions, Mr. Dolan’s affidavit directly conflicts with the
deposition testimony of Ms. Carty, the manager of the defendant’s bar, wherein she admitted to
control of the manner and methods in which the bouncers/guards performed their duties. For all of
these reasons, moving defendant’s motion must be denied.
7 of 16
FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022
THE DEFENDANT RAMBLING HOUSE FAILED TO KEEP THE PREMISES
REASONABLY SAFE
23. Defendant RAMBLING HOUSE failed to maintain their property in a reasonably
safe condition. It is well settled that a property owner has the duty to maintain its property in a
reasonably safe condition in view of the circumstances, including the likelihood of injuries of
others, the seriousness of the injury, and the burden of avoiding the risk so as to prevent the
occurrence of foreseeable injuries. See, Sherman v. Concourse Realty Corp., 47 A.D. 2d 134 (2nd
Dept. 1975); Here, defendants failed to keep their premises reasonably safe.
24. Under the doctrine of respondeat superior, employers are vicariously liable for their
employees’ torts, including intentional torts such as assault, if the employee was acting within the
scope of his employment and the acts were committed in furtherance of the employer’s business.
See, Riviello v. Waldron, 47 NY2d 297 (1979); Fauntleroy v. EMM Group Holdings LLC, 133
A.D.3d 452 (1st Dept. 2015); Bilias v. Gaslight, Inc., 100 A.D.3d 533 (1st Dept. 2012; Ramos v
Jake Realty Co., 21 A.D.3d 744 (1St Dept. 2005). Respondeat Superior “is premised on a notion
that the employer is justly held responsible when the servant through lack of judgment or
discretion, or from infirmity of temper, or under the influence of passion aroused by the
circumstances and the occasion, goes beyond the strict line of duty or authority, and inflicts an
unjustifiable injury upon another Dewald v. Seidenberg, 297 N.Y.335 (1948). Here, the bouncers
were employees of the moving defendant and were clearly acting within the scope of their
employment, and the acts were committed in furtherance of the moving defendant’s business.
25. When a business such as the defendant’s bar hires security guards and bouncers to
maintain order, the physical force used by those bouncers to maintain order is within the scope of
their employment. See, Fauntleroy v. EMM Group Holdings, LLC, 133 A.D.3d 452 (1st Dept.
8 of 16
FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022
2015); Jones v. Hiro Cocktail Lounge, 2016 WL 3006103 (1st Dept. 2016); Babikian v. Nikki
Midtown, LLC., 60 A.D.3d 470 (1st Dept. 2009).
26. The applicability of respondeat superior is determined by weighing certain factors
including “the connection between the time, place and occasion for the act, the history of the
relationship between employer and employee as spelled out in actual practice; whether the act is
commonly done by such an employee; the extent of departure from normal methods of
performance; and whether the specific act was one that the employer could have reasonably could
have anticipated”. Ramos v Jake Realty Co., supra. Since the determination of whether a particular
act was within an employees’ scope of employment is so heavily dependent on factual
considerations, the question is one for the jury. See, Rivello v. Waldron, 47 NY2d 297 (1979;
White v. Alkoutavni, 18 A.D.3d 540 (2nd Dept. 2005).
27. Moreover, the moving defendant negligently hired the bouncers, retained them,
supervised them, and knew or should have known of the employees’ propensity for the conduct
that caused plaintiff’s injury. See, Shelia C. Povich, 11 A.D.3d 120 (1st Dept. 2004); Ostroy v. Six
Square, LLC, 100 A.D.3d 493 (1st Dept. 2012). In a negligent hiring and retention action, the
negligence of the defendant is direct not vicarious, and arises from its having placed the employee
in a position to cause foreseeable harm, harm that the insured plaintiff would have been spared had
the moving defendant taken reasonable care in making its decision concerning the hiring and
retention of its employees.
28. Also, without merit is defendant’s contention that the bouncers involved in the
subject incident were independent contractors of the defendant, and thus defendant bears no
liability for their actions. Even if defendant could establish that the bouncers were independent
contractors, the defendant movant retained control of the work or at least some part of it, and as
9 of 16
FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022
such the general rule would not apply and the defendant would be liable for torts committed by its
independent contractor. See, Wright v. Esplanade Gardens, 150 A.D.2d 197 (1st Dept. 1989). In
Wright, the Court reversed the granting of summary judgment in favor of the defendant upon the
grounds that issues of fact existed as to whether the defendant controlled the manner of the work
performance of the independent contractor, and thus was responsible for the tort of its independent
contractor. In the matter at bar, it cannot be disputed that the defendant controlled the manner of
the security work of the two bouncers that were involved in this incident.
29. While the general rule is that an employer of an independent contractor is not
ordinarily liable for the independent contractor’s negligence, an exception to this rule is where the
employer exerted any direct control over the manner in which the work was performed. See, Matter
of Mortan, 248, N.Y.167 (1940). In the matter at bar, it cannot be seriously contended that the
general rule regarding independent contractor’s would apply. Even if the defendant could establish
the bouncers were independent contractors, Ms. Carty admitted to having direct control of not only
the bouncers but also the methods they employed. Indeed, she testified she was the final call and
could stop any method she did not agree with.
30. The distinction between an employee and an independent contractor lies in the
direction and control provided by the employer. Where the employer controls the methods, he is
considered an employee, and not an independent contractor. The test is the existence of a right of
control over the agent in respect of the manner in which his work is to be done. Where the manner
in which his work is to be done is controlled by the employer, the agent is considered an employee,
whereas if he uses his own discretion, he is an independent contractor. Matter of Pierce v. Bowen,
160 N.E.379 (1928). Ms. Carty would tell the bouncers that if they didn’t know how to handle
something to come and get her. Ms. Carty is a control person at the bar and if she sees the
10 of 16
FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022
security/bouncers do something that she’s not comfortable with she will tell the bouncers that she
doesn’t want them doing that (Exhibit “H”, p.72). Bouncers never remove patrons unless Ms.
Carty directs them to do so (Exhibit “H”, p.73). The owners controlled the manner in which the
bouncers’ handled patrons (Exhibit “H”, p.70-71).
31. No written agreement existed between Tommy and the other bouncers and moving
defendant (Exhibit “H”, p.73-74). Everyone was paid in cash (Exhibit “H”, p.74). They wore a
RAMBLING HOUSE shirt (Exhibit “H”, p.75). Bouncer Joseph had been working approximately
a year (Exhibit “H”, p.65-66) and it’s a part-time job for him. Tommy Drago has been doing
security for the bar for two years and provides personnel (Exhibit “H”, p.67). The defendant would
pay him in cash per shift (Exhibit “H”, p.67). Tommy had worked at the bar for many years even
before it had changed names. (Exhibit “H”, p. 69-70) The owners of the bar told Tommy what
their expectations are as far as how to handle patrons (Exhibit “H”, p.70-71). All of these factors
establish that the relationship between the moving defendant and the bouncers is akin to that of
employer and employee.
32. Ms. Carty admitted she would tell the bouncers that if they didn’t know how to
handle something to come and get her. Ms. Carty admitted she is a control person at the bar and if
she sees the security/bouncers do something that she’s not comfortable with she will tell the
bouncers that she doesn’t want them doing that (Exhibit “H”, p.72). Yet Ms. Carty saw that
plaintiff, and the bouncers had “tumbled” on the floor and she did not intervene (Exhibit “H”, p.55-
57). House policy is that it is always the managers decision to make the final call if someone
should be removed (Exhibit “H”, p.48). On the day in question Ms. Carty made the final decision
to get rid of plaintiff (Exhibit H”, p.48).
11 of 16
FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022
33. Plaintiff made no physical moves to resist leaving (Exhibit “H”, p.58) yet Tommy
Drago and another security guard Joseph Kripp approached plaintiff (Exhibit “H”, p.54,56). Ms.
Carty thereafter saw that plaintiff and two bouncers and plaintiff, and the bouncers had “tumbled”
on the floor (Exhibit “H”, p.55-57). Ms. Carty testified that it’s their house policy to rarely escort
people out and to not use physical force unless the bouncer or patrons are threatened (Exhibit “H”,
p.62). Ms. Carty did not see plaintiff threaten any patrons (Exhibit “H”, p.62). Even though Ms.
Carty admitted she never saw plaintiff threaten any patrons, she testified that once plaintiff was on
the floor plaintiff was a physical threat (Exhibit “H”, p.63). Ms. Carty admitted and sanctioned the
manner in which plaintiff was removed testifying that stepping on a patron’s leg could be justified
if the patron was acting out (Exhibit “H”, p.64).
34. It is well settled that whether someone is an independent contractor or employee is
a question of fact and may not be determined as a matter of law. The determination of whether one
is an independent contractor is typically a question of fact concerning which party controls the
methods and means by which the work is to be done. See, Crage v. Kissing Bridge Ski Area, 186
A.D.2d 987, (N.Y.App.Div.1992). Where there is a conflict in evidence, and proof in the issue of
control, the issue may not be determined as a matter of law. See, Matter of Beach v. Velzy, 238
N.Y.100, (1924), Here, it is undisputed that the moving defendant exercised control of the manner
and methods used by the bouncers, and this at a minimum a question remains as to whether the
bouncers were independent contractors or employees.
35. As set forth above, numerous triable issues of fact that must be resolved at trial
exist. As set forth above, the testimony of Ms. Carty in of itself creates material questions of fact
regarding the degree of control and there exists a material question of fact as to whether the
bouncers/security guards were independent contractor or employees. Moreover, even if deemed
12 of 16
FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022
independent contractors there exists material questions of fact as to whether the defendant’s
exercised control over the methods of the work thus, plaintiff has at a minimum presented material
questions of fact exist precluding summary judgment.
36. Also without merit is defendant’s contention that the police report establishes that
the assault did not occur. The burden of proof in a criminal and civil case are starkly different. The
burden of proof in a criminal case, is beyond a reasonable doubt. As such, the police during their
investigation must view an allegation and evidence from a view towards whether a criminal action
can be sustained. On the other hand, in a civil case, the standard of proof is a preponderance of the
evidence. A finding that there is not enough evidence to bring forth a criminal case does not
foreclose a civil case. In the matter at bar, the police investigation as to whether an assault was
committed as it pertains to criminal charges being filed has no impact whatsoever as to plaintiff’s
civil action.
37. Additionally, the Officer’s interpretation of the video documenting plaintiff’s
incident does not establish a finding that the incident did not occur. Indeed, the report states a
criminal assault did not occur. The actual incident is documented in the footage. Plaintiff was
indeed stomped on and thrown to the ground. Moreover, plaintiff disagreed with the findings in
the police investigation report. Plaintiff was shown the report of the investigating police officer
(Exhibit “D”, p.56). Plaintiff disagreed with the officer’s interpretation of the video footage
(Exhibit “D”, p.57). Plaintiff disagreed with the statements in the investigation report (Exhibit “D”,
p.58). As such, without a doubt interpretation of the video would be a question necessarily left to
a jury for determination. All of these issues may not be properly determined the on a motion for
summary judgment.
13 of 16
FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022
38. Contrary to defendants’ claim the video footage does not establish defendant’s
entitlement to summary judgment as a matter of law. In brief, an examination of the video shows
that plaintiff was thrown to the ground. Plaintiff was shown the indoor video and identified the
moment the bouncer stomped on his leg while he was on the floor (Exhibit “D”, p.60-65). In
sum, contrary to defendants’ claim, the video footage does not prove what counsel for defendant
seeks to establish. On the contrary, the video is illustrative of the need for a trial to resolve these
issues.
39. It is well settled that a court may not weigh the credibility of witnesses on a motion
for summary judgment. See, Conciatori v. Port Authority of New York and New Jersey, NY Slip
Op 09549, 46 A.D.3d 501 (2nd Dept, 2007); Bengston v. Wang, 41 A.D.3d 625 (2nd Dept, 2007).
Accordingly, it is for the jury to determine credibility and what, if any, weight to give the
witnesses.
40. For all the reasons set forth above, it is respectfully submitted that the moving
defendant’s motion be denied in its entirety.
WHEREFORE, it is respectfully submitted that defendants’ motion be denied in its
entirety, and for such other and further relief as to this Court may seem just and proper. Pursuant
to 22 NYCRR 130-1.1 it is hereby certified that to the best of the undersigned’s knowledge,
information and belief formed after an inquiry reasonable under the circumstances,
the presentation of the annexed papers or contentions therein are not frivolous as defined NY 22
NYCRR 1.1(c)
14 of 16
FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022
Dated: Syosset, New York
August 15, 2022
_________________________________
RICHARD E. NOLL, ESQ
THE NOLL LAW FIRM, P.C.
Attorneys for Plaintiff
LEONARD J. CANORA
485 Underhill Boulevard, Suite 107
Syosset, NY 11791
(516) 307-1199
TO:
CLARK & FOX
Attorneys for the Defendant
RAMBLING HOUSE INC.
54 W 40th Street, 7th Floor
New York, NY 10018
15 of 16
FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E
NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022
WORD COUNT CERTIFICATION
Pursuant to Uniform Rules §202.8-b, I hereby certify that this Affirmation complies with the
word count limit set forth therein. The total number of words in this Affirmation, exclusive of
any captions, table of contents, table of authorities and signature blocks, is 4194 pursuant to the
word count in Microsoft, the word processing system used to prepare this document.
Dated: Syosset, New York
August 18, 2022
_________________________________
RICHARD E. NOLL, ESQ
THE NOLL LAW FIRM, P.C.
Attorneys for Plaintiff
LEONARD J. CANORA
485 Underhill Boulevard, Suite 107
Syosset, NY 11791
(516) 307-1199
16 of 16
Preview
FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ----------------------------------------------------------------------X LEONARD J. CANORA, Index No.: 20816/2020 Plaintiff, AFFIRMATION IN OPPOSITION -against- RAMBLING HOUSE INC., JOSEPH KRIPP and THOMAS DRAGO, Defendants. ------------------------------------------------------------------------X RICHARD E. NOLL, an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the truth of the following under the penalties of perjury: 1. I am a member of the Noll Law Firm, attorneys for the plaintiff, LEONARD J. CANORA, in the above captioned matter, and I am fully familiar with the facts and circumstances herein contained, the source of my knowledge and information, based upon the contents of the file maintained in this office. 2. This affirmation is submitted in opposition to the motion made by defendant, RAMBLING HOUSE INC, for an Order pursuant to CPLR 3212 dismissing plaintiff’s complaint as to the moving defendant. It is respectfully submitted that this Court deny defendant RAMBLING HOUSE INC.’s, motion, in its entirety, because the defendant has failed to establish its prima facie entitlement to summary judgment, as a matter of law. Moreover, even if the defendant could demonstrate its prima facie entitlement to summary judgment, the motion must still be denied as numerous triable issues of fact exist. 1 of 16 FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022 3. As will be fully set forth below, the plaintiff was caused to sustain severe, permanent personal injuries on March 23, 2019, at the premises/bar located at, 4292 Katonah Avenue, Bronx, New York, wherein defendant RAMBLING HOUSE INC., (hereinafter “RAMBLING HOUSE” ) was a tenant, when plaintiff was removed, thrown to the floor, stomped on and dragged out of the door, without warning, at the request of moving defendant RAMBLING HOUSE, by their bouncers/security guards/employees defendants, JOSEPH KRIPP and THOMAS DRAGO. PROCEDURAL HISTORY 4. This subject lawsuit was commenced by the filing of a Summons and Complaint on or about January 16, 2020, and Supplemental Summons and Complaint on August 12, 2021. See moving defendant’s motion Exhibit “A”, Exhibit “F”, Exhibit “K”). Defendant served an Answer on or about April 7, 2020. (See moving defendant’s motion Exhibit “B”). Default Judgments have been entered against non-appearing defendants Joseph Kripp and Thomas Drago. Annexed hereto as Exhibit “1” are copies of the same. PRELIMINARY STATEMENT 5. This matter arises from an incident that occurred on March 23, 2019, at the bar known as RAMBLING HOUSE when plaintiff, who was at the bar finishing a drink, was brutally and without warning ejected from the establishment at the direction of defendant RAMBLING HOUSE. As will be set forth fully below, defendant RAMBLING HOUSE directed the removal of plaintiff from the premises with undue and unnecessary force, directed the manner and method of when and how to remove a patron, failed to use reasonable care in removing plaintiff from the premises, in removing plaintiff in such a manner that to caused him to fall to the ground, failed to properly train educate, supervise and manage the bouncers and security at the premises, and 2 of 16 FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022 allowed the bouncers and security to use excessive force in removing plaintiff from the premises. As set forth fully below, the defendant RAMBLING HOUSE, through their witness, manager Tara Carty, admitted they controlled the manner and method in which the bouncers/security guards removed patrons, and had the final say to stop the subject incident, including the manner in which plaintiff was being ejected but failed to do so. RELEVANT DEPOSITION TESTIMONY OF THE PARTIES PLAINTIFF, LEONARD J. CANORA 6. Plaintiff, testified at an examination before trial on December 2, 2020. (Transcript annexed to moving defendant’s motion, Exhibit “D”). The moving defendant submits only the unsigned deposition transcript of the plaintiff. Plaintiff’s errata sheet annexed hereto to plaintiff’s opposition as Exhibit “2”. The incident occurred on March 23, 2019, at approximately 4p.m., inside the defendant’s bar (Exhibit “D”, p. 25-26,32). Prior to going to Rambling House plaintiff had not consumed any alcohol (Exhibit “D”, p.31-32). 7. The incident started inside the bar when plaintiff felt himself suddenly picked up and dragged towards the front door, pushed and shoved by two male bouncers without warning (Exhibit “D”, p.32-33). One of the bouncers was behind plaintiff and the other one to the side right of his shoulder (Exhibit “D”, p.32). Plaintiff did not know why he was being picked up (Exhibit “D”, p.33). 8. When security took plaintiff, they pushed and shoved him, carried him towards the front door and in the process of doing so one of the guards put his arm around plaintiff’s neck and the guy behind him pushed plaintiff towards the floor (Exhibit “D”, p.34-36). Plaintiff fell face first onto the ground, and the bouncer stepped/stomped on his left leg while he was on the ground 3 of 16 FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022 (Exhibit “D”, p.34-36). After being thrown to the ground and stomped on plaintiff could not get up, and the bouncers dragged plaintiff towards the front door, and threw him onto the street (Exhibit “D”, p.37-38). 9. Prior to being ejected, plaintiff paid and settled his bill and was finishing his drink (Exhibit “D”, p.41-42). At no point did any employee tell plaintiff why he was being thrown out (Exhibit “D”, p.43). Plaintiff went to the police department and reported the incident (Exhibit “D”, p.45,48). 10. Plaintiff was shown the report of the investigating police officer (Exhibit “D”, p.56). Plaintiff disagreed with the officer’s interpretation of the video footage (Exhibit “D”, p.57). Plaintiff disagreed with the statements in the investigation report (Exhibit “D”, p.58). Plaintiff was shown the indoor video and identified the moment the bouncer stomped on his leg while he was on the floor (Exhibit “D”, p.60-65). DEFENDANT RAMBLING HOUSE 11. Ms. Tara Carty, testified on behalf of defendant, RAMBLING HOUSE at an examination before trial on March 1, 2021. (Transcript annexed to moving defendant’s motion, Exhibit “H”). At the time of plaintiff’s accident, Ms. Carty was the manager of the defendant’s bar/restaurant/event space known as THE RAMBLING HOUSE located at 4292 Katonah Avenue, Bronx, New York (Exhibit H, p.8-9). 12. Ms. Carty directed the bouncer Tommy to keep an eye on plaintiff (Exhibit H, p.41). House policy is that it is always the managers decision to make the final call if someone should be removed (Exhibit “H”, p.48). On the day in question Ms. Carty made the final decision to get rid of plaintiff (Exhibit H”, p.48). 4 of 16 FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022 13. Ms. Carty went to the bouncer Tommy Drago and told him that plaintiff was given his check (Exhibit “H”, p.49). 10-15 minutes later, Ms. Carty felt plaintiff was taking to long to finish his drink and went and got the bouncer (Exhibit “H”, p.50). 14. At no point did plaintiff strike any of the bouncers (Exhibit “H”, p.57). Plaintiff made no physical moves to resist leaving (Exhibit “H”, p.58). Tommy Drago and another security guard Joseph Kripp approached plaintiff (Exhibit “H”, p.54,56). Ms. Carty thereafter saw that plaintiff and two bouncers had “tumbled” on the floor (Exhibit “H”, p.55-57). Ms. Carty testified that it’s their house policy to rarely escort people out and to not use physical force unless the bouncer or patrons are threatened (Exhibit “H”, p.62). Ms. Carty did not see plaintiff threaten any patrons (Exhibit “H”, p.62). Nevertheless, Ms. Carty testified that once plaintiff was on the floor plaintiff was a physical threat (Exhibit “H”, p.63). Ms. Carty admitted stepping on a patron’s leg could be justified if the patron was acting out (Exhibit “H”, p.64). 15. Ms. Carty would tell the bouncers that if they didn’t know how to handle something to come and get her. Ms. Carty is a control person at the bar and if she sees the security/bouncers do something that she’s not comfortable with she will tell the bouncers that she doesn’t want them doing that (Exhibit “H”, p.72). Bouncers never remove patrons unless Ms. Carty directs them to do so (Exhibit “H”, p.73). 16. No written agreement existed between Tommy and the other bouncers and moving defendant (Exhibit “H”, p.73-74). Everyone was paid in cash (Exhibit “H”, p.74). They wore a RAMBLING HOUSE shirt (Exhibit “H”, p.75). Bouncer Joseph had been working approximately a year (Exhibit “H”, p.65-66) and it’s a part-time job for him. Tommy Drago has been doing security for the bar for two years and provides personnel (Exhibit “H”, p.67). The defendant would pay him in cash per shift (Exhibit “H”, p.67). Tommy had worked at the bar for many years even 5 of 16 FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022 before it had changed names. (Exhibit “H”, p. 69-70) The owners of the bar told Tommy what their expectations are as far as how to handle patrons (Exhibit “H”, p.70-71). THE DEFENDANT HAS FAILED TO MEET ITS PRIMA FACIE ENTITLEMENT TO SUMMARY JUDGMENT 17. In making a motion for summary judgment, the initial burden is on the moving party to make a “prima facie showing of its entitlement; absent such a showing the motion is to be denied regardless of the insufficiency of the opposing papers.” Holtz v. Niagra Mohawk Power Corp., 147 A.D.2d 857, (3rd Dept. 1989). The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. The failure to make that showing requires the denial of the motion regardless of the sufficiency of the opposing papers. See, Mastrangelo v Manning, 17 A.D.3d 326 (2nd Dept. 2005). 18. If the proponent succeeds, only than does the burden shift to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position. See. Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980). Summary judgment is a drastic remedy and “should not be granted where there is any doubt as to the existence of a material and triable issue of fact’. Jablonski v. Rapalje, 14 A.D.3d (2nd Dept. 2005). Issue finding, rather than issue determination constitutes the key to the procedure. Anyanwu v. Johnson, 276 A.D.2d 572 (2nd Dept. 2000). 19. Here, the moving defendant has clearly failed to establish its prima facie entitlement to summary judgement as against it as a matter of law. In support, the defendant submits the unsigned deposition transcript of the plaintiff. See, Pina v. Flik International Corp., 25 A.D.3d 772 (2nd Dept, 2006). CPLR 3116(a) generally requires that the party submitting a 6 of 16 FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022 deposition transcript in support of summary judgment motion establish that the transcript was either signed by the deponent or that the transcript was sent to the deponent for correction, and it was not signed and returned within 60 days. Movant’s failure to show proof that the unsigned deposition transcript, submitted in support of motion, had been previously forwarded to relevant witness pursuant to CPLR 3116 renders transcript not admissible. 20. Moreover, the defendant annexes the deposition transcript of Ms. Carty, the manager of the defendant’s bar, which as discussed below, demonstrates that the bouncers/security guards were employees acting within the scope of their employment when they assaulted/removed plaintiff, and/or at a minimum, that even if deemed independent contractors, the defendant exhibited control over the manner/methods they performed their duties and is thus liable for their actions. Ms. Carty admits that she controlled the bouncers, was the final say in all removals, and controlled the methods of removal, even going as far as admitting that stepping on a patron’s leg was permissible. 21. The defendant also erroneously contends the submitted video footage of the incident establishes no incident occurred. Indeed, the video documents plaintiff’s incident occurred in the very manner plaintiff alleges, however, at a minimum creates a question of fact as to the interpretation of the incident that cannot be decided on a summary judgment motion. 22. With regard to the self-serving affidavit of Rory Dolan, bar owner, wherein he makes unsubstantiated conclusory assertions, Mr. Dolan’s affidavit directly conflicts with the deposition testimony of Ms. Carty, the manager of the defendant’s bar, wherein she admitted to control of the manner and methods in which the bouncers/guards performed their duties. For all of these reasons, moving defendant’s motion must be denied. 7 of 16 FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022 THE DEFENDANT RAMBLING HOUSE FAILED TO KEEP THE PREMISES REASONABLY SAFE 23. Defendant RAMBLING HOUSE failed to maintain their property in a reasonably safe condition. It is well settled that a property owner has the duty to maintain its property in a reasonably safe condition in view of the circumstances, including the likelihood of injuries of others, the seriousness of the injury, and the burden of avoiding the risk so as to prevent the occurrence of foreseeable injuries. See, Sherman v. Concourse Realty Corp., 47 A.D. 2d 134 (2nd Dept. 1975); Here, defendants failed to keep their premises reasonably safe. 24. Under the doctrine of respondeat superior, employers are vicariously liable for their employees’ torts, including intentional torts such as assault, if the employee was acting within the scope of his employment and the acts were committed in furtherance of the employer’s business. See, Riviello v. Waldron, 47 NY2d 297 (1979); Fauntleroy v. EMM Group Holdings LLC, 133 A.D.3d 452 (1st Dept. 2015); Bilias v. Gaslight, Inc., 100 A.D.3d 533 (1st Dept. 2012; Ramos v Jake Realty Co., 21 A.D.3d 744 (1St Dept. 2005). Respondeat Superior “is premised on a notion that the employer is justly held responsible when the servant through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of duty or authority, and inflicts an unjustifiable injury upon another Dewald v. Seidenberg, 297 N.Y.335 (1948). Here, the bouncers were employees of the moving defendant and were clearly acting within the scope of their employment, and the acts were committed in furtherance of the moving defendant’s business. 25. When a business such as the defendant’s bar hires security guards and bouncers to maintain order, the physical force used by those bouncers to maintain order is within the scope of their employment. See, Fauntleroy v. EMM Group Holdings, LLC, 133 A.D.3d 452 (1st Dept. 8 of 16 FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022 2015); Jones v. Hiro Cocktail Lounge, 2016 WL 3006103 (1st Dept. 2016); Babikian v. Nikki Midtown, LLC., 60 A.D.3d 470 (1st Dept. 2009). 26. The applicability of respondeat superior is determined by weighing certain factors including “the connection between the time, place and occasion for the act, the history of the relationship between employer and employee as spelled out in actual practice; whether the act is commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could have reasonably could have anticipated”. Ramos v Jake Realty Co., supra. Since the determination of whether a particular act was within an employees’ scope of employment is so heavily dependent on factual considerations, the question is one for the jury. See, Rivello v. Waldron, 47 NY2d 297 (1979; White v. Alkoutavni, 18 A.D.3d 540 (2nd Dept. 2005). 27. Moreover, the moving defendant negligently hired the bouncers, retained them, supervised them, and knew or should have known of the employees’ propensity for the conduct that caused plaintiff’s injury. See, Shelia C. Povich, 11 A.D.3d 120 (1st Dept. 2004); Ostroy v. Six Square, LLC, 100 A.D.3d 493 (1st Dept. 2012). In a negligent hiring and retention action, the negligence of the defendant is direct not vicarious, and arises from its having placed the employee in a position to cause foreseeable harm, harm that the insured plaintiff would have been spared had the moving defendant taken reasonable care in making its decision concerning the hiring and retention of its employees. 28. Also, without merit is defendant’s contention that the bouncers involved in the subject incident were independent contractors of the defendant, and thus defendant bears no liability for their actions. Even if defendant could establish that the bouncers were independent contractors, the defendant movant retained control of the work or at least some part of it, and as 9 of 16 FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022 such the general rule would not apply and the defendant would be liable for torts committed by its independent contractor. See, Wright v. Esplanade Gardens, 150 A.D.2d 197 (1st Dept. 1989). In Wright, the Court reversed the granting of summary judgment in favor of the defendant upon the grounds that issues of fact existed as to whether the defendant controlled the manner of the work performance of the independent contractor, and thus was responsible for the tort of its independent contractor. In the matter at bar, it cannot be disputed that the defendant controlled the manner of the security work of the two bouncers that were involved in this incident. 29. While the general rule is that an employer of an independent contractor is not ordinarily liable for the independent contractor’s negligence, an exception to this rule is where the employer exerted any direct control over the manner in which the work was performed. See, Matter of Mortan, 248, N.Y.167 (1940). In the matter at bar, it cannot be seriously contended that the general rule regarding independent contractor’s would apply. Even if the defendant could establish the bouncers were independent contractors, Ms. Carty admitted to having direct control of not only the bouncers but also the methods they employed. Indeed, she testified she was the final call and could stop any method she did not agree with. 30. The distinction between an employee and an independent contractor lies in the direction and control provided by the employer. Where the employer controls the methods, he is considered an employee, and not an independent contractor. The test is the existence of a right of control over the agent in respect of the manner in which his work is to be done. Where the manner in which his work is to be done is controlled by the employer, the agent is considered an employee, whereas if he uses his own discretion, he is an independent contractor. Matter of Pierce v. Bowen, 160 N.E.379 (1928). Ms. Carty would tell the bouncers that if they didn’t know how to handle something to come and get her. Ms. Carty is a control person at the bar and if she sees the 10 of 16 FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022 security/bouncers do something that she’s not comfortable with she will tell the bouncers that she doesn’t want them doing that (Exhibit “H”, p.72). Bouncers never remove patrons unless Ms. Carty directs them to do so (Exhibit “H”, p.73). The owners controlled the manner in which the bouncers’ handled patrons (Exhibit “H”, p.70-71). 31. No written agreement existed between Tommy and the other bouncers and moving defendant (Exhibit “H”, p.73-74). Everyone was paid in cash (Exhibit “H”, p.74). They wore a RAMBLING HOUSE shirt (Exhibit “H”, p.75). Bouncer Joseph had been working approximately a year (Exhibit “H”, p.65-66) and it’s a part-time job for him. Tommy Drago has been doing security for the bar for two years and provides personnel (Exhibit “H”, p.67). The defendant would pay him in cash per shift (Exhibit “H”, p.67). Tommy had worked at the bar for many years even before it had changed names. (Exhibit “H”, p. 69-70) The owners of the bar told Tommy what their expectations are as far as how to handle patrons (Exhibit “H”, p.70-71). All of these factors establish that the relationship between the moving defendant and the bouncers is akin to that of employer and employee. 32. Ms. Carty admitted she would tell the bouncers that if they didn’t know how to handle something to come and get her. Ms. Carty admitted she is a control person at the bar and if she sees the security/bouncers do something that she’s not comfortable with she will tell the bouncers that she doesn’t want them doing that (Exhibit “H”, p.72). Yet Ms. Carty saw that plaintiff, and the bouncers had “tumbled” on the floor and she did not intervene (Exhibit “H”, p.55- 57). House policy is that it is always the managers decision to make the final call if someone should be removed (Exhibit “H”, p.48). On the day in question Ms. Carty made the final decision to get rid of plaintiff (Exhibit H”, p.48). 11 of 16 FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022 33. Plaintiff made no physical moves to resist leaving (Exhibit “H”, p.58) yet Tommy Drago and another security guard Joseph Kripp approached plaintiff (Exhibit “H”, p.54,56). Ms. Carty thereafter saw that plaintiff and two bouncers and plaintiff, and the bouncers had “tumbled” on the floor (Exhibit “H”, p.55-57). Ms. Carty testified that it’s their house policy to rarely escort people out and to not use physical force unless the bouncer or patrons are threatened (Exhibit “H”, p.62). Ms. Carty did not see plaintiff threaten any patrons (Exhibit “H”, p.62). Even though Ms. Carty admitted she never saw plaintiff threaten any patrons, she testified that once plaintiff was on the floor plaintiff was a physical threat (Exhibit “H”, p.63). Ms. Carty admitted and sanctioned the manner in which plaintiff was removed testifying that stepping on a patron’s leg could be justified if the patron was acting out (Exhibit “H”, p.64). 34. It is well settled that whether someone is an independent contractor or employee is a question of fact and may not be determined as a matter of law. The determination of whether one is an independent contractor is typically a question of fact concerning which party controls the methods and means by which the work is to be done. See, Crage v. Kissing Bridge Ski Area, 186 A.D.2d 987, (N.Y.App.Div.1992). Where there is a conflict in evidence, and proof in the issue of control, the issue may not be determined as a matter of law. See, Matter of Beach v. Velzy, 238 N.Y.100, (1924), Here, it is undisputed that the moving defendant exercised control of the manner and methods used by the bouncers, and this at a minimum a question remains as to whether the bouncers were independent contractors or employees. 35. As set forth above, numerous triable issues of fact that must be resolved at trial exist. As set forth above, the testimony of Ms. Carty in of itself creates material questions of fact regarding the degree of control and there exists a material question of fact as to whether the bouncers/security guards were independent contractor or employees. Moreover, even if deemed 12 of 16 FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022 independent contractors there exists material questions of fact as to whether the defendant’s exercised control over the methods of the work thus, plaintiff has at a minimum presented material questions of fact exist precluding summary judgment. 36. Also without merit is defendant’s contention that the police report establishes that the assault did not occur. The burden of proof in a criminal and civil case are starkly different. The burden of proof in a criminal case, is beyond a reasonable doubt. As such, the police during their investigation must view an allegation and evidence from a view towards whether a criminal action can be sustained. On the other hand, in a civil case, the standard of proof is a preponderance of the evidence. A finding that there is not enough evidence to bring forth a criminal case does not foreclose a civil case. In the matter at bar, the police investigation as to whether an assault was committed as it pertains to criminal charges being filed has no impact whatsoever as to plaintiff’s civil action. 37. Additionally, the Officer’s interpretation of the video documenting plaintiff’s incident does not establish a finding that the incident did not occur. Indeed, the report states a criminal assault did not occur. The actual incident is documented in the footage. Plaintiff was indeed stomped on and thrown to the ground. Moreover, plaintiff disagreed with the findings in the police investigation report. Plaintiff was shown the report of the investigating police officer (Exhibit “D”, p.56). Plaintiff disagreed with the officer’s interpretation of the video footage (Exhibit “D”, p.57). Plaintiff disagreed with the statements in the investigation report (Exhibit “D”, p.58). As such, without a doubt interpretation of the video would be a question necessarily left to a jury for determination. All of these issues may not be properly determined the on a motion for summary judgment. 13 of 16 FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022 38. Contrary to defendants’ claim the video footage does not establish defendant’s entitlement to summary judgment as a matter of law. In brief, an examination of the video shows that plaintiff was thrown to the ground. Plaintiff was shown the indoor video and identified the moment the bouncer stomped on his leg while he was on the floor (Exhibit “D”, p.60-65). In sum, contrary to defendants’ claim, the video footage does not prove what counsel for defendant seeks to establish. On the contrary, the video is illustrative of the need for a trial to resolve these issues. 39. It is well settled that a court may not weigh the credibility of witnesses on a motion for summary judgment. See, Conciatori v. Port Authority of New York and New Jersey, NY Slip Op 09549, 46 A.D.3d 501 (2nd Dept, 2007); Bengston v. Wang, 41 A.D.3d 625 (2nd Dept, 2007). Accordingly, it is for the jury to determine credibility and what, if any, weight to give the witnesses. 40. For all the reasons set forth above, it is respectfully submitted that the moving defendant’s motion be denied in its entirety. WHEREFORE, it is respectfully submitted that defendants’ motion be denied in its entirety, and for such other and further relief as to this Court may seem just and proper. Pursuant to 22 NYCRR 130-1.1 it is hereby certified that to the best of the undersigned’s knowledge, information and belief formed after an inquiry reasonable under the circumstances, the presentation of the annexed papers or contentions therein are not frivolous as defined NY 22 NYCRR 1.1(c) 14 of 16 FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022 Dated: Syosset, New York August 15, 2022 _________________________________ RICHARD E. NOLL, ESQ THE NOLL LAW FIRM, P.C. Attorneys for Plaintiff LEONARD J. CANORA 485 Underhill Boulevard, Suite 107 Syosset, NY 11791 (516) 307-1199 TO: CLARK & FOX Attorneys for the Defendant RAMBLING HOUSE INC. 54 W 40th Street, 7th Floor New York, NY 10018 15 of 16 FILED: BRONX COUNTY CLERK 08/18/2022 11:44 AM INDEX NO. 20816/2020E NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/18/2022 WORD COUNT CERTIFICATION Pursuant to Uniform Rules §202.8-b, I hereby certify that this Affirmation complies with the word count limit set forth therein. The total number of words in this Affirmation, exclusive of any captions, table of contents, table of authorities and signature blocks, is 4194 pursuant to the word count in Microsoft, the word processing system used to prepare this document. Dated: Syosset, New York August 18, 2022 _________________________________ RICHARD E. NOLL, ESQ THE NOLL LAW FIRM, P.C. Attorneys for Plaintiff LEONARD J. CANORA 485 Underhill Boulevard, Suite 107 Syosset, NY 11791 (516) 307-1199 16 of 16