Motion to Dismiss in Ukenta Ijeoma Vs Victoria Secret Stor Es, Llc| Trellis.Law

On July 06, 2023 a Motion,Ex Parte was filed involving a dispute between Ijeoma Ukenta, and Abigail Elphick, Allied Universal Security Serv, Jane John Does 1-10, Short Hills Associates, Llc, The Taubman Company,Llc, Tions 1-1 0 Xyz Entities Corpora, Victoria Secret Stores, Llc, for Assault And Battery in the District Court of Essex County.

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Chimdi G. Tuffs, Esq. – 146222015
Madison E. Calkins, Esq. – 390952021
GFELLER LAURIE LLP
105 College Road East
Second Floor
Princeton, New Jersey 08540
(609) 776-3100
(609) 751-9902 (fax)

Attorneys for Defendant
Victoria’s Secret Stores, LLC improperly
pleaded as “Victoria Secret Stores, LLC”

SUPERIOR COURT OF NEW JERSEY
IJEOMA UKENTA, LAW DIVISION: ESSEX COUNTY
DOCKET NO.: ESX-L-004325-23
Plaintiff,

- against - Civil Action

VICTORIA SECRET STORES, LLC, SHORT
HILLS ASSOCIATES, LLC., D/B/A THE NOTICE OF MOTION TO DISMISS
MALL AT SHORT HILLS, THE TAUBMAN
COMPANY, LLC, ALLIED UNIVERSAL
SECURITY SERVICES, ABIGAL ELPHICK,
JANE/JOHN DOES 1 – 10 (names being
fictitious), and XYZ
ENTITIES/CORPORATIONS 1 – 10 (names
being fictitious),

Defendants.

TO: All counsel of record.

RETURNABLE: September 8, 2023

PLACE: Superior Court, Law Division – Essex County

RELIEF SOUGHT: Order pursuant to Rule 4:6-2(e) dismissing Plaintiff Ijeoma
Ukenta’s Complaint as to Defendant Victoria’s Secret
Stores, LLC improperly pleaded as “Victoria Secret Stores,
LLC” for failure to state a claim.
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DISCOVERY END DATE: May 27, 2024

ARBITRATION DATE: None.

TRIAL DATE: None.

CERTIFICATION: I hereby certify that the original of this Notice of Motion and
supporting documents are being filed with the Clerk of the
County in which venue is laid, and that service of these
documents is being made in accordance with R. 1:6-3.

PLEASE TAKE FURTHER NOTICE that, in accordance
with the provisions of R. 1:6-2, a proposed form of Order is
submitted herewith;

PLEASE TAKE FURTHER NOTICE that, in accordance
with R. 1:6-5 opposition papers must be filed and served at
least eight days prior to hearing of this Motion; and

PLEASE TAKE FURTHER NOTICE that respectfully, oral
argument is requested.

GFELLER LAURIE LLP
Attorneys for Defendant
Victoria’s Secret Stores, LLC improperly
pleaded as “Victoria Secret Stores, LLC”

By:
Dated: August 21, 2023 Chimdi G. Tuffs, Esq.

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CERTIFICATION OF SERVICE

I, Chimdi G. Tuffs, Esq., of full age, do hereby certify that on the date below, I served a

copy of the within Notice of Motion, along with all supporting papers, upon all counsel of record,

via e-filing.

I hereby certify that the foregoing statements made by me are true. I am aware that if any

of the foregoing statements made by me are willfully false, I am subject to punishment.

GFELLER LAURIE LLP
Attorneys for Defendant
Victoria’s Secret Stores, LLC improperly
pleaded as “Victoria Secret Stores, LLC”

By:
Dated: August 21, 2023 Chimdi G. Tuffs, Esq.
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Chimdi G. Tuffs, Esq. – 146222015
Madison E. Calkins, Esq. – 390952021
GFELLER LAURIE LLP
105 College Road East
Second Floor
Princeton, New Jersey 08540
609-776-3100
609-751-9902 (fax)

Attorneys for Defendant
Victoria’s Secret Stores, LLC improperly
pleaded as “Victoria Secret Stores, LLC”

SUPERIOR COURT OF NEW JERSEY
IJEOMA UKENTA, LAW DIVISION: ESSEX COUNTY
DOCKET NO.: ESX-L-004325-23
Plaintiff,
Civil Action
- against -

VICTORIA SECRET STORES, LLC, SHORT
HILLS ASSOCIATES, LLC., D/B/A THE ORDER
MALL AT SHORT HILLS, THE TAUBMAN
COMPANY, LLC, ALLIED UNIVERSAL
SECURITY SERVICES, ABIGAL ELPHICK,
JANE/JOHN DOES 1 – 10 (names being
fictitious), and XYZ
ENTITIES/CORPORATIONS 1 – 10 (names
being fictitious),

Defendants.

THIS MATTER having been opened to the Court by Gfeller Laurie LLP, attorneys for

Defendant Victoria’s Secret Stores, LLC, improperly pleaded as “Victoria Secret Stores, LLC”

(“Victoria’s Secret”), seeking an Order dismissing Plaintiff Ijeoma Ukenta’s (“Plaintiff”)

Complaint as to Victoria’s Secret pursuant to R. 4:6-2(e), and the Court having considered the

papers submitted and the arguments of counsel, and for good cause shown,

IT IS on this _____ day of ________________________________, 20___,
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ORDERED AS FOLLOWS:

1. Victoria’s Secret’s Motion to Dismiss Plaintiff’s Complaint with Prejudice is hereby

GRANTED;

2. All claims asserted against Victoria’s Secret, including any and all third-party claims

and cross-claims, are hereby dismissed with prejudice; and

3. A copy of this Order shall be served on all counsel in this matter within seven days of

receipt.

____________________________________
, J.S.C.

Opposed

Unopposed

Decided on the Papers
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Chimdi G. Tuffs, Esq. – 146222015
Madison E. Calkins, Esq. – 390952021
GFELLER LAURIE LLP
105 College Road East
Second Floor
Princeton, New Jersey 08540
609-776-3100
609-751-9902 (fax)

Attorneys for Defendant
Victoria’s Secret Stores, LLC improperly
pleaded as “Victoria Secret Stores, LLC”

SUPERIOR COURT OF NEW JERSEY
IJEOMA UKENTA, LAW DIVISION: ESSEX COUNTY
DOCKET NO.: ESX-L-004325-23
Plaintiff,
Civil Action
- against -
CERTIFICATION OF CHIMDI G.
VICTORIA SECRET STORES, LLC, SHORT TUFFS, ESQ. IN SUPPORT OF
HILLS ASSOCIATES, LLC., D/B/A THE MOTION TO DISMISS
MALL AT SHORT HILLS, THE TAUBMAN
COMPANY, LLC, ALLIED UNIVERSAL
SECURITY SERVICES, ABIGAL ELPHICK,
JANE/JOHN DOES 1 – 10 (names being
fictitious), and XYZ
ENTITIES/CORPORATIONS 1 – 10 (names
being fictitious),

Defendants.

I, Chimdi G. Tuffs, Esq., do hereby certify as follows:

1. I am an attorney-at-law of the State of New Jersey and a partner with the law firm

of Gfeller Laurie LLP, attorneys for Defendant Victoria’s Secret Stores, LLC, improperly pleaded

as “Victoria Secret Stores, LLC” (“Victoria’s Secret”). I submit this Certification in support of

Victoria’s Secret’s Motion to Dismiss for Failure to State a Claim. I am fully familiar with the

facts and circumstances of this case as set forth below.

1
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2. In support of Victoria’s Secret’s Motion to Dismiss for Failure to State a Claim,

Victoria’s Secret will rely upon the enclosed Memorandum of Law and the exhibits listed below

and annexed to this Certification.

3. Attached as Exhibit A to this Certification is Plaintiff Ijeoma Ukenta’s Complaint

dated July 6, 2023.

4. Attached as Exhibit B to this Certification is the unpublished case captioned Felegi

v. Grille, 2017 WL 2730238 (App. Div. 2017).

I certify that the foregoing statements made by me are true. I am aware that if any of the

foregoing statements made by me are willfully false, I am subject to punishment.

GFELLER LAURIE LLP
Attorneys for Defendant
Victoria’s Secret Stores, LLC improperly
pleaded as “Victoria Secret Stores, LLC”

Dated: August 21, 2023 By:____________________________________
Chimdi G. Tuffs, Esq.

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EXHIBIT A
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HINSON SNIPES, LLP
Princeton Forrestal Village
116 Village Boulevard, Suite 307
Princeton, New Jersey 08540
P: (609) 452-7333 & F: (609) 452-7332
Tracey C. Hinson, Esquire
Attorney for Plaintiff IJEOMA UKENTA

IJEOMA UKENTA, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION – ESSEX COUNTY
Plaintiff, DOCKET NO.: ESX-L-

vs. CIVIL ACTION

VICTORIA SECRET STORES, LLC,
SHORT HILLS ASSOCIATES, LLC.,
D/B/A THE MALL AT SHORT HILLS,
THE TAUBMAN COMPANY, LLC, ALLIED COMPLAINT
UNIVERSAL SECURITY SERVICES, AND JURY DEMAND
ABIGAL ELPHICK, JANE/JOHN DOES 1-
10 (names being fictitious), and
XYZ ENTITIES/CORPORATIONS 1-10
(names being fictitious),

Defendants.

Plaintiff IJEOMA UKENTA, residing in the County of Essex, and

State of New Jersey, by way of Complaint, states:

PARTIES
1. At all times relevant hereto, Plaintiff IJEOMA UKENTA,

was a resident of the County of Essex, and State of New Jersey.

2. At all times relevant hereto, Defendant, The Taubman

Company, LLC, (“Taubman”), with its principal place of business

located 200 E. Long Lake Road, Suite 200, Bloomfield Hills, MI
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48304-2324, was the owner and/or operator of The Mall at Short

Hills (the “Mall”), located at 1200 Morris Turnpike, in Short

Hills, New Jersey.

3. At all times relevant hereto, upon information and

belief, Defendant, Short Hills Associates, LLC., D/B/A Mall at

Short Hills, (hereinafter “SHA”), with its principal place of

business located at 1200 Morris Turnpike, Suite 2, in Short Hills,

New Jersey, was the owner and/or operator of the Mall.

4. At all times relevant, Defendant, Victoria Secret

Stores, LLC (“Victoria Secret”), was a corporation licensed to do

business in the State of New Jersey, with its principal place of

business at 3 Limited Parkway, Columbus, Ohio, and operating its

store at the Mall.

5. At all times relevant hereto, upon information and

belief, Defendant, Allied Universal Security Services (“Allied”),

provides safety and security services at The Mall at Short Hills,

including but not limited to operating and maintaining security of

all areas of the mall. Allied maintains its principal place of

business at Eight Tower Bridge, 161 Washington Street, Suite 600,

Conshohocken, PA, and maintains a New Jersey Office at, among other

places, The Mall at Short Hills, 1200 Morris Turnpike, Suite A-

001, Short Hills, New Jersey.

6. Defendants Victoria Secret, Taubman, and SHA, are

referred to jointly as “Mall Defendants.”
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7. At all times relevant, Defendant Abigail J. Elphick

(“Elphick”), resided at 58 Sunset Terrace, in Cedar Grove, New

Jersey.

8. At all times relevant hereto, Defendants XYZ

Entities/Corporations 1-10, representing one or more fictitious

individuals or entities, consisting of Directors, Officers,

Principals, Partners, Boards, Board Members or Representatives or

Agents, individually, jointly, and severally, whose identities are

currently unknown, were responsible, directly or by and through

their principals, agents, servants, and/or employees, for the

operations, security, safety, and inspections, and maintenance of

the location where the incident described herein occurred.

9. At all times relevant, Defendants Jane/John Does 1-10,

were principals, agents, servants and/or employees of Mall

Defendants and XYZ Entities/Corporations 1-10.

10. As such, Mall Defendants and XYZ Entities/Corporations

1-10, are vicariously liable for any negligent acts, grossly

negligent acts, and/or omissions on the part of Defendants

Jane/John Does 1-10.

BACKGROUND AND FACTS

11. On July 10, 2021, Plaintiff IJEOMA UKENTA, was a business

invitee of Mall Defendants at The Mall, invited to The Mall for

the business purposes of Mall Defendants.
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12. While shopping at Victoria Secret, Plaintiff was

subjected to an unwarranted and unprovoked assault and battery by

Defendant Elphick who was also a business invitee of Mall

Defendants.

13. On at least three (3) occasions, Elphick chased

Plaintiff around the Victoria Secret Store, lunged at her,

attempted to strike her, and attempted to swipe her phone from her

hand, forcing Plaintiff to attempt seek cover behind a store

manager.

14. The incident began when, due to COVID restrictions,

Plaintiff made a simple request that Elphick move six feet away,

after leaning too close in proximity to Plaintiff; an interaction

that lasted approximately five (5) seconds.

15. Elphick immediately walked up to the employees at the

cash register and falsely claimed Plaintiff threatened her and

demanded to have Plaintiff removed from the store.

16. Flabbergasted at the false accusations and at Elphick’s

behavior, and being keenly aware that if the police were called,

she, a Black woman, may not be believed and could be deemed the

aggressor, Plaintiff began to record with her cell phone to protect

herself.

16. The series of videotapes show Elphick charging toward

Plaintiff, lunging at her, and attempting to knock her phone from

her hand.
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17. The shock, panic, and confusion can be heard in

Plaintiff’s voice as she exclaimed, “Oh God, Oh my God. Oh my God.

Do you see this? Oh my God. I never thought nothing like this would

happen to me. She tried to run and hit me.”

18. Video shows Elphick continuing to chase Plaintiff around

the store as Plaintiff desperately tried to avoid her.

19. Recordings of the 911 calls placed by Elphick revealed

she falsely reported Plaintiff was threatening her.

20. Plaintiff did not at any time threaten Elphick. Videos

of the incident show that it was Elphick that threatened to call

the police on Plaintiff, menaced, assaulted, battered, and chased

Plaintiff around the store, placing Plaintiff in fear for her

physical safety.

21. As this was happening, Victoria Secret employees did

anything to assist or protect Plaintiff. Nor did they ask Elphick,

who was clearly the aggressor, to leave the store before the

incident escalated. Instead, they ignored what was happening,

allowing Elphick to continue her assault on Plaintiff while they

continued to service Victoria Secret’s customers.

22. Despite being summoned on multiple occasions, Mall

Security failed to respond in a timely manner. When Mall Security

finally responded, they treated Plaintiff in a disparate manner by

treating her as the aggressor rather than a victim, further
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increasing the embarrassment, humiliation, fear, and general sense

that she was not believed and would not be treated fairly.

22. Despite knowledge that Elphick had committed and assault

and battery on Plaintiff, Mall security ignored Plaintiff’s

request to remove Elphick from the premises and failed to offer

her assistance or protection.

23. Neither Victoria Secret employees, nor mall security

showed any concern for Plaintiff, her safety, or her wellbeing.

They were extremely dismissive toward her and were indifferent and

nonchalant about her concerns for her safety.

24. Although she was the victim, Plaintiff was humiliated

further by mall security, her concerns were ignored, and she was

the one asked to leave the mall.

FIRST COUNT

1. Plaintiff repeats and reiterates the allegations in all

prior paragraphs as though the same are set forth at length herein.

2. The Mall Defendants owed to Plaintiff, and to the invited

public, a duty to exercise ordinary care to render The Mall

reasonably safe for its business invitees, and to care for,

protect, and safeguard its invitees, including Plaintiff, from

harm, and breached that duty causing harm to Plaintiff.

3. The Mall Defendants had a duty to implement policies,

and procedures to protect their business invitees from physical
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harm on their premises and breached their duty to provide adequate

security, and adequate training to their employees to intervene,

aid, or protect their customers from physical harm, despite prior

knowledge that such physical harm were likely to occur, and

breached that causing harm to Plaintiff.

4. The Mall Defendants were negligent and careless in

failing to maintain safe and secure premises for all patrons and/or

invitees which allowed the criminal acts against Plaintiff to be

perpetrated on their premises.

5. The Mall Defendants knew or should have know that the

failure to provide adequate security, training, and supervision to

its employees, and its failure to implement policies and procedures

to protect its business invitees from physical harm on their

premises, created a foreseeable risk of harm to invitees like

Plaintiff.

6. As a direct and proximate result of Mall Defendants,

negligence and breach of duty, Plaintiff IJEOMA UKENTA, was

publicly humiliated, and suffered severe, disabling, and permanent

mental, psychological, and emotional injuries, which required her

to seek medical treatment and to incur medical expenses, caused

her to refrain from her normal pursuits, and will in the future

cause her to seek medical treatment, incur future medical expenses,

and to refrain from her normal pursuits.
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WHEREFORE, Plaintiff IJEOMA UKENTA, demands judgment against

Defendants Victoria Secret, Taubman, and SHA, for:

A. General damages;
B. Compensatory damages;
C. Cost and interest;
D. Attorney’s fees;
E. Any other relief the Court deems just and equitable.

SECOND COUNT

1. Plaintiff repeats the allegations contained in all prior

paragraphs as though the same are set forth at length herein.

2. At all times hereinafter mentioned, Defendant Allied

provided security over the property owned, operated, and

controlled by Mall Defendants, and negligently failed to provide

security, adequate security, and proper training of its employees

and/or security personnel.

3. As a direct and proximate result of Allied’s negligent,

careless, and reckless conduct, Plaintiff IJEOMA UKENTA, was

publicly humiliated, and suffered severe, disabling, and permanent

mental, psychological, and emotional injuries, which required her

to seek medical treatment and to incur medical expenses, caused

her to refrain from her normal pursuits, and will in the future

cause her to seek medical treatment, incur future medical expenses,

and to refrain from her normal pursuits.
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WHEREFORE, Plaintiff IJEOMA UKENTA, demands judgment against

Defendant Allied, for:

A. General damages;
B. Compensatory damages;
C. Cost and interest;
D. Attorney’s fees;
E. Any other relief the Court deems just and equitable.

THIRD COUNT

1. Plaintiff repeats the allegations contained in all prior

paragraphs as though the same are set forth at length herein.

2. Defendant Elphick assaulted and battered Plaintiff

without cause or justification doing so negligently, carelessly,

and recklessly.

3. As a direct and proximate result of Defendant Elphick’s

negligent, careless, and reckless conduct, Plaintiff IJEOMA

UKENTA, was publicly humiliated, and suffered severe, disabling,

and permanent mental, psychological, and emotional injuries, which

required her to seek medical treatment and to incur medical

expenses, caused her to refrain from her normal pursuits, and will

in the future cause her to seek medical treatment, incur future

medical expenses, and to refrain from her normal pursuits.

WHEREFORE, Plaintiff IJEOMA UKENTA, demands judgment against

Defendant Abigail Elphick, for:

A. General damages;
B. Compensatory damages;
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C. Cost and interest;
D. Attorney’s fees;
E. Any other relief the Court deems just and equitable.
FOURTH COUNT

1. Plaintiff repeats the allegations contained in all prior

paragraphs as though the same are set forth at length herein.

2. At all times hereinafter mentioned, Defendants Jane/John

Does 1-10, and XYZ Entities/Corporations 1-10, representing one or

more fictitious persons or entities consisting of Directors,

Officers, Principals, Partners, Boards, Board Members or

Representatives or Agents, individually, jointly and severally,

had a supervisory capacity, and/or control over the property

identified as the Mall, and participated in, failed to intervene

or aid, and/or negligently failed to provide proper supervise and

training of their employees and security personnel.

3. At all times hereinafter mentioned, Defendants Jane/John

Does 1-10, and XYZ Corporation/Partnership 1-10, were acting as

agents, servants and/or employees of Mall Defendants and/or

Allied.

4. As a result of the negligence of Jane/John Does 1-10,

and XYZ Corporation/Partnership 1-10, Plaintiff IJEOMA UKENTA, was

publicly humiliated, and suffered severe, disabling, and permanent

mental, psychological, and emotional injuries, which required her

to seek medical treatment and to incur medical expenses, caused
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her to refrain from her normal pursuits, and will in the future

cause her to seek medical treatment, incur future medical expenses,

and to refrain from her normal pursuits.

WHEREFORE, Plaintiff IJEOMA UKENTA, demands judgment against

Defendants Jane/John Does 1-10, and XYZ Corporation/Partnership 1-

10, for:

A. General damages;
B. Compensatory damages;
C. Cost and interest;
D. Attorney’s fees;
E. Any other relief the Court deems just and equitable.

CERTIFICATION

PLEASE TAKE NOTICE pursuant to the provisions of R.4:5-1, the

undersigned attorney certifies that this matter is not the subject

of any other action pending in any court or arbitration proceeding

nor is any other action or arbitration proceeding contemplated,

and all known necessary parties have been joined in this action.

NOTICE PURSUANT TO RULES 1:5-1 (A) AND 4:17

PLEASE TAKE NOTICE take notice that the undersigned attorney,

counsel for the Plaintiff, hereby demands pursuant to Rules 1:5-1

(a) and 4:17 (c), that each party herein serving pleadings and

interrogatories and receiving answers thereto, serve copies of all

such pleadings and answered interrogatories received from any
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party, including any documents, papers and other materials

referred to therein, upon the undersigned attorney, and take notice

that this is a continuing demand.

DEMAND FOR ANSWERS TO INTERROGATORIES

PLEASE TAKE NOTICE pursuant to R.4:17-1 (b), Plaintiff hereby
demands that the Defendants provide answers to the uniform

interrogatories set forth in Form C and Form C (2) of Appendix II

of the Rules Governing the Courts of the State of New Jersey.

DEMAND FOR ANSWERS TO SUPPLEMENTAL INTERROGATORIES

PLEASE TAKE NOTICE pursuant to R.4:17, Plaintiff hereby

demands that Defendants provide answers to the supplemental

interrogatories attached hereto.

DEMAND TO ANSWER NOTICE TO PRODUCE

PLEASE TAKE NOTICE pursuant to R.4:18-1, Plaintiff hereby

requests that Defendants respond to the Notice to Produce attached

hereto within the time prescribed by the Court Rules.

REQUEST FOR DISCOVERY OF INSURANCE

PLEASE TAKE NOTICE pursuant to R.4:l0-2(b) demand is hereby
made that you respond to the Request for Discovery of Insurance

attached hereto.

DESIGNATION OF TRIAL COUNSEL

PLEASE TAKE NOTICE that attorney, TRACEY C. HINSON, ESQUIRE,
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is hereby designated as trial counsel in the above captioned

litigation for the firm of HINSON SNIPES, LLP.

JURY DEMAND

PLEASE TAKE NOTICE that the Plaintiff hereby demands a trial
by jury as to all issues so triable.

NOTICE PURSUANT TO RULES 1:7-1(b)

PLEASE TAKE NOTICE Plaintiff intends to utilize the time-unit
basis for calculating unliquidated damages in Plaintiff’s closing
statement to the jury and the Court.

HINSON SNIPES, LLP

By: /s/Tracey C. Hinson
Tracey C. Hinson, Esquire

Dated: July 6, 2023
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Civil Case Information Statement
Case Details: ESSEX | Civil Part Docket# L-004325-23

Case Caption: UKENTA IJEOMA VS VICTORIA SECRET Case Type: PERSONAL INJURY
STOR ES, LLC Document Type: Complaint with Jury Demand
Case Initiation Date: 07/06/2023 Jury Demand: YES - 6 JURORS
Attorney Name: TRACEY C HINSON Is this a professional malpractice case? NO
Firm Name: HINSON SNIPES, LLP Related cases pending: NO
Address: 116 VILLAGE BLVD STE 307 If yes, list docket numbers:
PRINCETON NJ 08540 Do you anticipate adding any parties (arising out of same
Phone: 6094527333 transaction or occurrence)? YES
Name of Party: PLAINTIFF : UKENTA, IJEOMA Does this case involve claims related to COVID-19? NO
Name of Defendant’s Primary Insurance Company
(if known): Unknown Are sexual abuse claims alleged by: IJEOMA UKENTA? NO

THE INFORMATION PROVIDED ON THIS FORM CANNOT BE INTRODUCED INTO EVIDENCE
CASE CHARACTERISTICS FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION

Do parties have a current, past, or recurrent relationship? NO
If yes, is that relationship:
Does the statute governing this case provide for payment of fees by the losing party? NO
Use this space to alert the court to any special case characteristics that may warrant individual
management or accelerated disposition:

Do you or your client need any disability accommodations? NO
If yes, please identify the requested accommodation:

Will an interpreter be needed? NO
If yes, for what language:

Please check off each applicable category: Putative Class Action? NO Title 59? NO Consumer Fraud? NO

I certify that confidential personal identifiers have been redacted from documents now submitted to the
court, and will be redacted from all documents submitted in the future in accordance with Rule 1:38-7(b)

07/06/2023 /s/ TRACEY C HINSON
Dated Signed
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EXHIBIT B
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Felegi v. Grille, Not Reported in Atl. Rptr. (2017)

and was negligent in serving alcohol to a visibly intoxicated
2017 WL 2730238 person in violation of the New Jersey Licensed Alcoholic
Only the Westlaw citation is currently available. Beverage Server Fair Liability Act, N.J.S.A. 2A:22A–1 to -7
(Dram Shop Act).
UNPUBLISHED OPINION. CHECK
COURT RULES BEFORE CITING. To support his negligent security claim, plaintiff retained an
expert, who opined that the Grille had a duty “to provide a safe
Superior Court of New Jersey, Appellate Division. environment for its guests.” According to plaintiff's security
expert, the Grille's failure to hire properly trained security
Ryan FELEGI, Plaintiff–Appellant, personnel and provide security in the parking lot was a breach
v. of the Grille's duty of care.
Stoney Brook GRILLE,
Plaintiff also claimed that the Grille's service of alcohol to a
Defendant–Respondent, visibly intoxicated Kosovich proximately caused his injuries.
and No expert report was proffered to support plaintiff's Dram
Shop Act claim against the Grille. Rather, plaintiff stated
Christopher Kosovich, Defendant.
witnesses would testify at trial that Kosovich was visibly
intoxicated.
DOCKET NO. A–0289–15T3
|
We review the facts in a light most favorable to plaintiff,
Argued May 23, 2017
and therefore the following discussion summarizes plaintiff's
|
version of the relevant events. Brill v. Guardian Life Ins. Co.
Decided June 26, 2017
of Am., 142 N.J. 520, 540 (1995). The Grille is a family-style
On appeal from the Superior Court of New Jersey, Law restaurant that provided a disc jockey (DJ) on Friday evenings
Division, Somerset County, Docket No. L–349–13. after 10:00 p.m. Although the Grille stopped serving food at
10:00 p.m. on Friday, the bar remained open for the purchase
Attorneys and Law Firms of alcohol. The Grille also removed the dining tables to create
a dance club atmosphere.
Kyle G. Schwartz argued the cause for appellant.

AnnMarie Flores argued the cause for respondent MK Food The Grille did not hire private security for its DJ
Service d/b/a Stoney Brooke Grille (Gage Fiore, LLC, entertainment. Friends of the Grille's owner checked
attorneys; Ms. Flores, on the brief). identification documentation to ensure that patrons were over
twenty-one years of age.
Before Judges Koblitz and Mayer.
One Friday evening, plaintiff, his brother Robert, and two
Opinion friends went to the Grille for the DJ entertainment. Plaintiff
saw Kosovich at the Grille. Plaintiff's brother had a prior
PER CURIAM
incident with Kosovich. However, plaintiff assured Kosovich
*1 Plaintiff Ryan Felegi appeals the trial court's June 26, that he and his companions had no intention of causing trouble
2015 order, granting summary judgment in favor of defendant that evening.
MK Food Service d/b/a Stoney Brooke Grille, improperly
pled as Stoney Brook Grille (Grille). Plaintiff also appeals the Just prior to closing, someone told plaintiff, who was inside
August 7, 2015 order denying his motion for reconsideration. the Grille, that plaintiff's brother and Kosovich were about
We affirm both orders. to fight outside the Grille. One of the Grille's managers,
Robert Long, saw plaintiff and other individuals run from
Plaintiff filed a complaint alleging personal injuries caused the bar to the parking lot. An angry crowd had surrounded
by defendant Christopher Kosovich arising from a stabbing Kosovich. Plaintiff told Kosovich to leave the Grille parking
outside a restaurant known as the Grille. Plaintiff claimed lot before something happened. Kosovich was leaving when
the Grille was negligent in providing security to its patrons

© 2023 Thomson Reuters. No claim to original U.S. Government Works. 1
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Felegi v. Grille, Not Reported in Atl. Rptr. (2017)

Long grabbed plaintiff. It was at that moment that Kosovich On appeal, plaintiff alleges that the judge abused her
swung a knife cutting both plaintiff and Long. 1 discretion as to both motions and disputed material facts
warranted denial of the Grille's motion for summary
*2 Upon completion of discovery, the Grille moved for judgment.
summary judgment. In a letter opinion, Assignment Judge
Yolanda Ciccone granted the Grille's motion and dismissed Appellate review of an order granting summary judgment is
plaintiff's claims with prejudice. de novo, applying the same standard governing the trial court.
Cypress Point Condo. Ass'n v. Adria Towers, LLC, 226 N.J.
On the negligent security claim, the judge found that because 403, 414 (2016); Davis v. Brickman Landscaping, Ltd., 219
no criminal activity occurred at or near the Grille for a N.J. 395, 405 (2014). Summary judgment must be granted
three-year period prior to plaintiff's injury, the claim failed. if there is no genuine issue of material fact and the moving
While plaintiff argued that security staff was needed outside party is entitled to judgment as a matter of law. R. 4:46–2(c).
the Grille to “deter incidents,” the judge rejected plaintiff's Thus, we consider “whether the evidence presents a sufficient
argument because there were no incidents outside the Grille disagreement to require submission to a jury or whether it is
prior to plaintiff's injury giving rise to a legal duty. so one-sided that one party must prevail as a matter of law.”
Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J.
Similarly, the judge rejected plaintiff's argument that the 436, 445–46 (2007) (quoting Brill, supra, 142 N.J. at 536).
Grille's change in use from a restaurant establishment to Courts reviewing summary judgment motions must “consider
a DJ dance club altered the Grille's legal duty to provide whether the competent evidential materials presented, when
adequate security. The judge found that plaintiff was unable viewed in the light most favorable to the non-moving party,
to articulate any legal support for such a theory. are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party.”
The judge also dismissed plaintiff's Dram Shop Act claim, Brill, supra, 142 N.J. at 540. “If there is no genuine issue of
concluding that plaintiff failed to establish Kosovich was material fact,” an appellate court must then “decide whether
visibly intoxicated. At best, plaintiff offered evidence that the trial court correctly interpreted the law.” DepoLink Court
Kosovich had been drinking, but submitted no evidence to Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super.
support a claim of visible intoxication. Plaintiff and others 325, 333 (App. Div. 2013) (citations omitted). We accord
at the Grille were unable to state the amount of alcohol no deference to the trial judge's legal conclusions. Nicholas
consumed by Kosovich. v. Mynster, 213 N.J. 463, 478 (2013) (citing Zabilowicz v.
Kelsey, 200 N.J. 507, 512–13 (2009)).
Plaintiff argued that additional depositions were needed to
establish that the Grille served alcohol to Kosovich after *3 A motion for reconsideration is reviewed for abuse of
he was visibly intoxicated. However, the twice-extended discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App.
discovery period expired prior to the Grille filing for summary Div. 1996). Reconsideration is appropriate only in those cases
judgment. Plaintiff submitted no affidavits or certifications “in which either 1) the [c]ourt has expressed its decision based
from individuals who would testify as to Kosovich's visible upon a palpably incorrect or irrational basis, or 2) it is obvious
intoxication. that the [c]ourt either did not consider, or failed to appreciate
the significance of probative, competent evidence.” D'Atria v.
Plaintiff moved for reconsideration, and Judge Ciccone D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).
denied the motion. The judge ruled that plaintiff did not
satisfy Rule 4:49–2 governing a motion for reconsideration. Applying these standards, we conclude the Grille was entitled
The judge determined plaintiff was rearguing matters to summary judgment because plaintiff failed to establish the
addressed by the court in granting summary judgment. The elements necessary to prevail on his negligent security claim
judge found plaintiff failed to cite any relevant evidence as well as his Dram Shop Act claim. We also conclude that the
that the court did not consider or failed to appreciate. Nor judge properly denied plaintiff's motion for reconsideration.
did plaintiff articulate why the judge's summary judgment
decision was palpably incorrect or irrational. In general, to sustain a negligence claim, a plaintiff must
prove the following elements: “(1) a duty of care, (2) a breach
of that duty, (3) proximate cause, and (4) actual damages.”

Case Info

Judge

Jeffrey B Beacham Track Judge’s New Case

Case No.

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Document Filed Date

August 21, 2023

Case Filing Date

July 06, 2023

County

Parties

Abigail Elphick Defendant
Allied Universal Security Serv Defendant
Chimdi Nwosu Ginsburg Tuffs Attorney for the Defendant
Christopher E Mc Intyre Attorney for the Defendant
Elyse S Schindel Attorney for the Defendant
Ijeoma Ukenta Plaintiff
Jane/John Does 1-10 Defendant
Rubin M Sinins Attorney for the Defendant
Short Hills Associates, Llc Defendant
The Taubman Company,Llc Defendant
Tions 1-1 0 Xyz Entities/Corpora Defendant
Tracey C Hinson Attorney for the Plaintiff
Victoria Secret Stores, Llc Defendant
Sierra Santana Attorney

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Motion,Ex Parte: Ukenta Ijeoma Vs Victoria Secret Stor Es, Llc

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