Preview
r INDEX NO. 150239/2017
FILED: NEW YORK COUNTY CLERK 03/19/2020 10:29 AM
NYSCEF DOC. NO. 107 (
RECEIVED NYSCEF: 03/19/2020
1
i
1 SUPREME COURT OF THE STATE OF NEW YORK
2 COUNTY OF NEW YORK: TRIAL TERM PART 12
3 X
4 RISA MORLEY, Individually and as Parent and
Natural Guardian of JM, an Infant under the
5 Age of Fourteen Years Old,
6 Plaintiffs,
7 - against -
8 BPP ST OWNER, LLC, STUYVESANT TOWN-PETER COOPER VILLAGE,
IRE CROWN RINKS, LLC and THE ICE AT STUYTOWN,
I-
! 9
Defendants.
10
X
11 Index No. 150239/2017
12 March 4, 2020
60 Centre Street
13 New York, New York 10007
14 BE FORE: THE HONORABLE BARBARA JAFFE, Justice
l
15 APPEARANCES:
16 BAILLY and McMILLAN, LLP
Attorneys at Law
17 244 Westchester Avenue, Suite 410
White Plains, New York 10604
18 BY: JOHN J. BAILLY, ESQ.
19 ROEMER WALLENS GOLD & MINEAUX LLP
Attorneys at Law
20 13 Columbia Circle
Albany, New York 12203
21 BY: ROBERT J. HEFFERNAN, ESQ.
22
23
24 Terry-Ann Volberg, CSR, CRR
Official Court Reporter
25
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l THE COURT: It's your motion, counsel.
2 MR. HEFFERNAN: So today we have a summary
3 judgment motion on behalf of the defendant ice rink
4 operator.
5 The plaintiff was a young girl attending a
6 birthday party at the ice rink one day after school. She
7 was skating over toward --
8 THE COURT: I know the facts.
9 MR. HEFFERNAN: So essentially what we are arguing
10 here is that the defendant had no notice of any kind of this
11 alleged gap or crack in between two sections of the facing
12 of the boards.
13 THE COURT: Let me ask you, the facing of the
14 boards, that's where the ads are?
15 MR. HEFFERNAN: Correct, it's not the top railing
16 part, it's the part that's the wall. So she was skating
17 along —
18 THE COURT: It's a vertical, alleged vertical
19 separation?
20 MR. HEFFERNAN: Correct.
21 So we submitted deposition testimony affidavits
22 from the venue manager at the time who arrived there earlier
23 that morning, inspected the rink as usual, did not come
24 across this gap in the northwest corner of the rink or
25 anywhere else. Then the rink opens for business and the
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1 birthday party starts. There are other skaters there, as
2 well, in addition to the birthday party throughout the
3 course of the early afternoon. None of these other skaters
4 noticed this gap or reported this gap.
5 There were multiple ice monitors working that day,
6 they were not both on the ice at the same time, they were
7 switching off, and neither of them notice this alleged gap
8 in this northwest corner of the rink. The first time that
9 anybody notices that this gap is present is when the
10 plaintiff gets her thumb stuck in there, and either she is
11 continuing to skate and it gets pulled out or she pulls it
12 out herself or pinches it together. We are not sure of the
13 mechanism.
14 The ice monitor who is working at the time is
15 immediately notified, goes over and takes care of the
16 situation. That is the first time that any of them have
17 ever seen this gap, have ever seen a separation of the
18 boards like that of any kind. We have an affidavit from the
19 manager and the longest tenured employee of the ice rink
20 that they have not seen this kind of separation before.
21 In addition to that -- I guess I will move on to
22 the opposition. Plaintiff filed an expert affidavit that is
23 completely baseless and speculative. It asserts that he
24 made a site visit, but there is no indication of when that
25 was, whether it was even the same ice rink that is
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1 deconstructed and reconstructed each year, There's no
2 photographs of the location where he says he inspected and
3 asserts that there was anything wrong with it. We have no
4 proof that he was ever even there because it's Stuyvesant
5 Town. You need either to live there or be a guest of
6 somebody who is there, and we don't have a record of him
7 doing an inspection in the first place.
8 THE COURT: You also, correct me if I am wrong, I
9 think you mentioned that the expert had the wrong —
10 MR. HEFFERNAN: Right, so there's — the issue
11 with the location of the accident is, we have testimony from
12 the ice monitors and manager who testified that it's not the
13 northwest corner of the rink where they find the girl on the
14 ground with her bloody finger crying and this is where the
15 accident happened. There's some exhibits attached that we
16 marked up that have this location with an X. Then there's a
17 location further down. During her deposition the little
18 girl testified she got it caught in this location. That's
19 actually one of the hinges of the doors that opens up, and
20 that's — the picture is very zoomed in on this location,
21 and there is no indication
22 THE COURT: You mean where the ice clearing
23 machine comes in?
24 MR. HEFFERNAN: Right. So the doors open up
25 there, and that happens, and that's where the little girl
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1 testified to. And the expert —
2 THE COURT: Is she very clear that it's in the
3 door?
4 MR. HEFFERNAN: No, she points to that particular
5 location, but her testimony is not that it's in the door,
6 just that it's in this opening, but we have the testimony of
7 three other
8 THE COURT: How far is the opening from the door?
9 MR. HEFFERNAN: Where she claims it is or where
10 the accident actually is? The opening is the hinge of the
11 door where it rotates on the hinge.
12 THE COURT: She didn't say she got her finger
13 caught in that, right? She got her finger caught in a gap
14 between
15 MR. HEFFERNAN: Right, but if you go further down,
16 the picture is above the door, so you look down, you see
17 where the hinge rotates, but there is no gap there because
18 that's not where she got hurt. It's, I don't know, 30 feet
19 further down the rink next to the chiller.
20 And then the video that the expert submits, the
\2l father admits that this video is of the opposite side, and
22 the expert says in his affidavit that this is where the
23 accident occurred which we can both agree that's not true
24 because the person who took the video admitted it's not
25 where it occurred.
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1 THE COURT: Thank you.
2 MR. BAILLY: Your Honor, there's clearly questions
3 of fact here.
4 The young girl who had a partial amputation of the
5 tip of her dominant thumb testified unequivocally that the
6 location of where this occurred was on top of the cap rail
7 where the white boards met the blue boards which is where
8 the Zamboni enters and exits. The photographs shows there
9 is a substantial gap on top of the cap rail which sits on
10 top of the boards.
11 The American Society for Testing and Materials
12 standards clearly state that the cap rails must be smooth,
13 round, and flush. They are definitive. They are cited by
14 our expert. There is no engineering expert in opposition.
15 If you look at the photographs it clearly shows that the cap
16 rails are squared off, they are rough-edged, and they are
17 not flush creating these gaps where her thumb got caught.
18 She clearly indicated the location where it happened, and
19 there's clearly a gap in the boards caused by negligent
20 construction. So they created the condition.
21 In addition, the defendants testified that
22 children and adults use these cap rails as handrails and
23 guards so they can hold on to them to steady themselves.
24 Since they are akin to a handrail, they have to comply with
25 the New York Property and Maintenance code which says
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1 handrails have to be in a good condition and have to be
2 properly fastened and secured. Here these handrails clearly
3 weren't. That's the second cause of action for negligent
4 maintenance. )
5 \ The third cause of action is for negligent
6 supervision. The only person on the ice that day was a
7 young girl, teenager, who had only started three days
8 earlier, and the testimony is that she would have to have
9 somebody else with her on the ice at the time. She did not.
10 She also said that when there are 25 to 30 skaters, there
11 should be two monitors at the time.
12 Now our plaintiff girl, Juliette, was having
13 difficulty skating. She had her hands on the boards to
14 steady herself. Had there been a second monitor, they might
15 have been able to help her or had there been a second
16 monitor they would have noticed the defect which caused the
17 accident.
18 So clearly, your Honor, we find there's questions
19 of fact here.
20 (Continued on next page for certification.)
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1 THE COURT: Thank you very much.
2 It's your motion, Mr. Heffernan. You will please
3 e-file a copy of this transcript within three weeks, and
4 I'11 take all hard copies, except exhibits. They will go to
5 Mr. Casper within three weeks, as well.
6 MR. HEFFERNAN: Sure.
7 Thank you.
8 MR. BAILLY: Thank you, your Honor.
9 ***
10 CERTIFICATE
i
11 I, Terry-Ann Volberg, C.S.R., an official court reporter of
12 the State of New York, do hereby certify that the foregoing
13 is a true and accurate transcript of my stenographic notes.
14
15
Terry-AnnU Volberg, CSR,
Preview
r INDEX NO. 150239/2017 FILED: NEW YORK COUNTY CLERK 03/19/2020 10:29 AM NYSCEF DOC. NO. 107 ( RECEIVED NYSCEF: 03/19/2020 1 i 1 SUPREME COURT OF THE STATE OF NEW YORK 2 COUNTY OF NEW YORK: TRIAL TERM PART 12 3 X 4 RISA MORLEY, Individually and as Parent and Natural Guardian of JM, an Infant under the 5 Age of Fourteen Years Old, 6 Plaintiffs, 7 - against - 8 BPP ST OWNER, LLC, STUYVESANT TOWN-PETER COOPER VILLAGE, IRE CROWN RINKS, LLC and THE ICE AT STUYTOWN, I- ! 9 Defendants. 10 X 11 Index No. 150239/2017 12 March 4, 2020 60 Centre Street 13 New York, New York 10007 14 BE FORE: THE HONORABLE BARBARA JAFFE, Justice l 15 APPEARANCES: 16 BAILLY and McMILLAN, LLP Attorneys at Law 17 244 Westchester Avenue, Suite 410 White Plains, New York 10604 18 BY: JOHN J. BAILLY, ESQ. 19 ROEMER WALLENS GOLD & MINEAUX LLP Attorneys at Law 20 13 Columbia Circle Albany, New York 12203 21 BY: ROBERT J. HEFFERNAN, ESQ. 22 23 24 Terry-Ann Volberg, CSR, CRR Official Court Reporter 25 tav 1 of 8 FILED: NEW YORK COUNTY CLERK 03/19/2020 10:29 AM INDEX NO. 150239/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 03/19/2020 Proceedings 2 l THE COURT: It's your motion, counsel. 2 MR. HEFFERNAN: So today we have a summary 3 judgment motion on behalf of the defendant ice rink 4 operator. 5 The plaintiff was a young girl attending a 6 birthday party at the ice rink one day after school. She 7 was skating over toward -- 8 THE COURT: I know the facts. 9 MR. HEFFERNAN: So essentially what we are arguing 10 here is that the defendant had no notice of any kind of this 11 alleged gap or crack in between two sections of the facing 12 of the boards. 13 THE COURT: Let me ask you, the facing of the 14 boards, that's where the ads are? 15 MR. HEFFERNAN: Correct, it's not the top railing 16 part, it's the part that's the wall. So she was skating 17 along — 18 THE COURT: It's a vertical, alleged vertical 19 separation? 20 MR. HEFFERNAN: Correct. 21 So we submitted deposition testimony affidavits 22 from the venue manager at the time who arrived there earlier 23 that morning, inspected the rink as usual, did not come 24 across this gap in the northwest corner of the rink or 25 anywhere else. Then the rink opens for business and the tav 2 of 8 FILED: NEW YORK COUNTY CLERK 03/19/2020 10:29 AM INDEX NO. 150239/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 03/19/2020 Proceedings 3 1 birthday party starts. There are other skaters there, as 2 well, in addition to the birthday party throughout the 3 course of the early afternoon. None of these other skaters 4 noticed this gap or reported this gap. 5 There were multiple ice monitors working that day, 6 they were not both on the ice at the same time, they were 7 switching off, and neither of them notice this alleged gap 8 in this northwest corner of the rink. The first time that 9 anybody notices that this gap is present is when the 10 plaintiff gets her thumb stuck in there, and either she is 11 continuing to skate and it gets pulled out or she pulls it 12 out herself or pinches it together. We are not sure of the 13 mechanism. 14 The ice monitor who is working at the time is 15 immediately notified, goes over and takes care of the 16 situation. That is the first time that any of them have 17 ever seen this gap, have ever seen a separation of the 18 boards like that of any kind. We have an affidavit from the 19 manager and the longest tenured employee of the ice rink 20 that they have not seen this kind of separation before. 21 In addition to that -- I guess I will move on to 22 the opposition. Plaintiff filed an expert affidavit that is 23 completely baseless and speculative. It asserts that he 24 made a site visit, but there is no indication of when that 25 was, whether it was even the same ice rink that is tav 3 of 8 FILED: NEW YORK COUNTY CLERK 03/19/2020 10:29 AM INDEX NO. 150239/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 03/19/2020 Proceedings .4 1 deconstructed and reconstructed each year, There's no 2 photographs of the location where he says he inspected and 3 asserts that there was anything wrong with it. We have no 4 proof that he was ever even there because it's Stuyvesant 5 Town. You need either to live there or be a guest of 6 somebody who is there, and we don't have a record of him 7 doing an inspection in the first place. 8 THE COURT: You also, correct me if I am wrong, I 9 think you mentioned that the expert had the wrong — 10 MR. HEFFERNAN: Right, so there's — the issue 11 with the location of the accident is, we have testimony from 12 the ice monitors and manager who testified that it's not the 13 northwest corner of the rink where they find the girl on the 14 ground with her bloody finger crying and this is where the 15 accident happened. There's some exhibits attached that we 16 marked up that have this location with an X. Then there's a 17 location further down. During her deposition the little 18 girl testified she got it caught in this location. That's 19 actually one of the hinges of the doors that opens up, and 20 that's — the picture is very zoomed in on this location, 21 and there is no indication 22 THE COURT: You mean where the ice clearing 23 machine comes in? 24 MR. HEFFERNAN: Right. So the doors open up 25 there, and that happens, and that's where the little girl tav 4 of 8 FILED: NEW YORK COUNTY CLERK 03/19/2020 10:29 AM INDEX NO. 150239/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 03/19/2020 Proceedings 5 t 1 testified to. And the expert — 2 THE COURT: Is she very clear that it's in the 3 door? 4 MR. HEFFERNAN: No, she points to that particular 5 location, but her testimony is not that it's in the door, 6 just that it's in this opening, but we have the testimony of 7 three other 8 THE COURT: How far is the opening from the door? 9 MR. HEFFERNAN: Where she claims it is or where 10 the accident actually is? The opening is the hinge of the 11 door where it rotates on the hinge. 12 THE COURT: She didn't say she got her finger 13 caught in that, right? She got her finger caught in a gap 14 between 15 MR. HEFFERNAN: Right, but if you go further down, 16 the picture is above the door, so you look down, you see 17 where the hinge rotates, but there is no gap there because 18 that's not where she got hurt. It's, I don't know, 30 feet 19 further down the rink next to the chiller. 20 And then the video that the expert submits, the \2l father admits that this video is of the opposite side, and 22 the expert says in his affidavit that this is where the 23 accident occurred which we can both agree that's not true 24 because the person who took the video admitted it's not 25 where it occurred. tav 5 of 8 FILED: NEW YORK COUNTY CLERK 03/19/2020 10:29 AM INDEX NO. 150239/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 03/19/2020 Proceedings 6 1 THE COURT: Thank you. 2 MR. BAILLY: Your Honor, there's clearly questions 3 of fact here. 4 The young girl who had a partial amputation of the 5 tip of her dominant thumb testified unequivocally that the 6 location of where this occurred was on top of the cap rail 7 where the white boards met the blue boards which is where 8 the Zamboni enters and exits. The photographs shows there 9 is a substantial gap on top of the cap rail which sits on 10 top of the boards. 11 The American Society for Testing and Materials 12 standards clearly state that the cap rails must be smooth, 13 round, and flush. They are definitive. They are cited by 14 our expert. There is no engineering expert in opposition. 15 If you look at the photographs it clearly shows that the cap 16 rails are squared off, they are rough-edged, and they are 17 not flush creating these gaps where her thumb got caught. 18 She clearly indicated the location where it happened, and 19 there's clearly a gap in the boards caused by negligent 20 construction. So they created the condition. 21 In addition, the defendants testified that 22 children and adults use these cap rails as handrails and 23 guards so they can hold on to them to steady themselves. 24 Since they are akin to a handrail, they have to comply with 25 the New York Property and Maintenance code which says tav 6 of 8 FILED: NEW YORK COUNTY CLERK 03/19/2020 10:29 AM INDEX NO. 150239/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 03/19/2020 Proceedings 7 1 handrails have to be in a good condition and have to be 2 properly fastened and secured. Here these handrails clearly 3 weren't. That's the second cause of action for negligent 4 maintenance. ) 5 \ The third cause of action is for negligent 6 supervision. The only person on the ice that day was a 7 young girl, teenager, who had only started three days 8 earlier, and the testimony is that she would have to have 9 somebody else with her on the ice at the time. She did not. 10 She also said that when there are 25 to 30 skaters, there 11 should be two monitors at the time. 12 Now our plaintiff girl, Juliette, was having 13 difficulty skating. She had her hands on the boards to 14 steady herself. Had there been a second monitor, they might 15 have been able to help her or had there been a second 16 monitor they would have noticed the defect which caused the 17 accident. 18 So clearly, your Honor, we find there's questions 19 of fact here. 20 (Continued on next page for certification.) 21 22 23 24 25 tav 7 of 8 FILED: NEW YORK COUNTY CLERK 03/19/2020 10:29 AM INDEX NO. 150239/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 03/19/2020 8 1 THE COURT: Thank you very much. 2 It's your motion, Mr. Heffernan. You will please 3 e-file a copy of this transcript within three weeks, and 4 I'11 take all hard copies, except exhibits. They will go to 5 Mr. Casper within three weeks, as well. 6 MR. HEFFERNAN: Sure. 7 Thank you. 8 MR. BAILLY: Thank you, your Honor. 9 *** 10 CERTIFICATE i 11 I, Terry-Ann Volberg, C.S.R., an official court reporter of 12 the State of New York, do hereby certify that the foregoing 13 is a true and accurate transcript of my stenographic notes. 14 15 Terry-AnnU Volberg, CSR,