Shiby Abraham,, Appellant,v.Chelsea Piers Management, Inc. Respondent.BriefN.Y.September 10, 2015To Be Argued By: PIERRE RATZKI New York County Clerk’s Index No. 101134/10 New York Supreme Court APPELLATE DIVISION—FIRST DEPARTMENT SHIBY ABRAHAM as administrator of the ESTATE OF SHIBU ABRAHAM, Plaintiff-Respondent, —against— CHELSEA PIERS MANAGEMENT INC., Defendant-Appellant. BRIEF FOR PLAINTIFF-RESPONDENT PIERRE RATZKI LAWRENCE B. GOLDHIRSCH WEITZ & LUXENBERG, P.C. 700 Broadway New York, New York 10003 (212) 558-5500 pratzki@weitzlux.com lgoldhirsch@weitzlux.com Attorneys for Plaintiff-Respondent REPRODUCED ON RECYCLED PAPER i TABLE OF CONTENTS PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 DECISION BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 I. CHELSEA PIERS DID NOT SATISFY ITS PRIMA FACIE BURDEN UNDER THE SUMMARY JUDGMENT STANDARD, AND THUS THE BURDEN NEVER SHIFTED TO PLAINTIFF TO RAISE AN ISSUE OF FACT IN OPPOSITION. . . . . . . . . . . . . 10 A. Summary Judgment Standard. . . . . . . . . . . . . . . . . . . . . . . 10 1. Specific Burden in Premises Liability Cases. . . . . . . 12 B. Chelsea Piers Did Not Satisfy its Prima Facie Burden . . . . 13 1. Compliance with Statutes and/or Regulations is Not Decisive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 2. Plaintiff’s Claims are Not Speculative. . . . . . . . . . . . 19 II. EVEN ASSUMING THAT CHELSEA PIERS DID SATISFY ITS INITIAL BURDEN AS THE MOVANT, PLAINTIFF RAISED SEVERAL ISSUES OF FACT IN OPPOSITION. . . . . . . . . . . . . . . 28 A. Plaintiff’s Expert Report Raises Issues of Fact. . . . . . . . . . 28 1. The Expert’s Reliance in Part on Non-Binding Regulations, Statutes, and Guidelines was Proper. . 29 ii 2. Plaintiff’s Expert Properly Relied on Other Sources in Addition to the Cited Statutes, Regulations and Guidelines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 III. CHELSEA PIERS ERRS IN ARGUING THAT A PROXIMATE CAUSE ANALYSIS SUPPORTS SUMMARY JUDGMENT BECAUSE PROXIMATE CAUSE IN THIS MATTER IS A QUESTION OF FACT FOR JURY DETERMINATION. . . . . . . . . 39 A. Chelsea Piers Misstates the Proximate Cause Standard and Confuses its Relevance to this Action at the Summary Judgment Stage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 PRINTING SPECIFICATION STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . 49 iii TABLE OF AUTHORITIES CASES Adamy v. Ziriakus, 92 N.Y.2d 396 (Ct. App. 1998). . . . . . . . . . . . . . . . . . . . . . . . 34 Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554 (Ct. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Basso v. Miller, 40 N.Y.2d 233 (Ct. App. 1976). . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Beaubrun v Boltachev, 111 A.D.3d 494 (1st Dept. 2013). . . . . . . . . . . . . . . . . . . . 11 Briggs v. State, 862 N.Y.S.2d 806 (Ct. Cl. 2005). . . . . . . . . . . . . . . . . . . . . . . 21, 22 Buchholz v. Trump 767 Fifth Ave., LLC, 5 N.Y.3d 1 (Ct. App. 2005). . . . . . . 34, 35 Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544 (Ct. App. 1998). . . . . . . . . . . . 39 Butler ex rel. Butler v. Rafferty, 100 N.Y.2d 265 (Ct. App. 2003). . . . . . . . . . . . . 12 Butler v. Marshall, 243 A.D.2d 971 (1st Dept. 1997). . . . . . . . . . . . . . . . . . . . . . . 45 Butler v. Seitelman, 90 N.Y.2d 987 (Ct. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . 23 Charles v. City of Yonkers, 103 A.D.3d 765 (2d Dept. 2013). . . . . . . . . . . . . . . . . 18 Dash by Dash v. City of New York, 236 A.D.2d 579 (2d Dept. 1997). . . . . . . . . . 32 Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308 (Ct. App. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 40, 41, 43, 44 Diaz v. New York Downtown Hosp., 99 N.Y.2d 542 (Ct. App. 2002). . . . . . . .35, 37 Dollas v W.R. Grace & Co., 225 A.D.2d 319 (1st Dept. 1996). . . . . . . . . . . . 11, 41 Duncan v. Corbetta, 178 A.D.2d 459 (2d Dept. 1991). . . . . . . . . . . . . . . . . . . . . . 18 Edwards v. St. Elizabeth Med. Ctr., 72 A.D.3d 1595 (4th Dept. 2010). . . . . . .36, 37 iv Efstathiou v. Cuzco, LLC, 51 A.D.3d 712 (2d Dept. 2008). . . . . . . . . . . . . . . . . . . 36 Ehehalt v. Nyari O'Dette, Inc., 85 Pa. Cmwlth. 94 (1984). . . . . . . . . . . . . . . . . . . 27 Elliott v. City of New York, 95 N.Y.2d 730 (Ct. App. 2001). . . . . . . . . . . . . . . . . . 16 Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136 (Ct. App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Feiner v. Calvin Klein, Ltd., 157 A.D.2d 501 (1st Dept. 1990). . . . . . . . . . . . . . . 17 Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 N.Y.3d 96 (Ct. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Greene v. Simmons, 13 A.D.3d 266 (1st Dept. 2004). . . . . . . . . . . . . . . . . . . . 37, 38 Gronski v. Cnty. of Monroe, 18 N.Y.3d 374 (Ct. App. 2011). . . . . . . . . . . 12, 15, 46 Hagensen v. Ferro, Kuba, Mangano, Skylar, Gacovino & Lake, P.C., 108 A.D.3d 410 (1st Dept. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Haseley v. Abels, 84 A.D.3d 480 (1st Dept. 2011). . . . . . . . . . . . . . . . . . . . . . 13, 43 Herrera v. Piano, 125 A.D.2d 548 (2d Dept. 1986). . . . . . . . . . . . . . . . . . . . . 24, 25 In re World Trade Ctr. Bombing Litig., 17 N.Y.3d 428 (Ct. App. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 15, 29 JMD Holding Corp. v Congress Fin. Corp., 4 N.Y.3d 373 (Ct. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Johnson v Outdoor Installations, LLC, 113 A.D.3d 576 (1st Dept. 2014). . . . . . . 11 Kellman v. 45 Tiemann Associates, Inc., 87 N.Y.2d 871 (Ct. App. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 Kelly v. Metro. Ins. & Annuity Co., 82 A.D.3d 16 (1st Dept. 2011). . . . . . . . . . . . 17 Kim v. Acosta, 72 A.D.3d 648 (2d Dept. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 v Landry v. Gen. Motors Corp., Cent. Foundry Div., 210 A.D.2d 898 (4th Dept. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32 Larkin v. Radio City Music Hall Corp., 282 A.D.2d 405 (1st Dept. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Lesocovich v. 180 Madison, 81 N.Y.2.d 982 (Ct. App. 1993). . . . . . . . . . . . . . . . .17 Lewis v Safety Disposal Sys. of Pa., Inc., 12 A.D.3d 324 (1st Dept. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Maheshwari v. City of New York, 2 N.Y.3d 288 (Ct. App. 2004). . . . . . . . . . . 46, 47 McFarland v. Grau, 305 S.W.2d 91 (Mo. Ct. App. 1957). . . . . . . . . . . . . . . . . . . 27 Mitrovic v. Silverman, 104 A.D.3d 430 (1st Dept. 2013). . . . . . . . . . . . . . . . . . . . 37 Noseworthy v. City of New York, 298 N.Y. 76 (Ct. App. 1948). . . . . . . . . . . . 11, 28 O'Keeffe v. State, 140 A.D.2d 998 (2d Dept. 1988). . . . . . . . . . . . . . . . . . . . . . . . 26 Overton v. City of New York, 89 N.Y.2d 850 (Ct. App. 1996). . . . . . . . . . . . . . . . 22 Pampillonia v. Burducea, 68 A.D.3d 1081 (2d Dept. 2009). . . . . . . . . . . . . . . . . . 13 Peralta v. Henriquez, 100 N.Y.2d 139 (Ct. App. 2003). . . . . . . . . . . . . . . . . . 12, 16 Petruzzi v. New York Mercantile Exch., Inc., 809 N.Y.S.2d 483 (1st Dept. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Radomski v. Consol. Gas Co. of New York, 152 N.Y.S. 1050 (1st Dept. 1915). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Rios v. Gristedes Delivery Serv. Inc., 69 A.D.3d 499 (1st Dept. 2010). . . . . . 45, 46 Romano v. Stanley, 90 N.Y.2d 444 (Ct. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . 35 Sadler v. Pennsylvania R. Co., 159 F.2d 784 (4th Cir. 1947). . . . . . . . . . . . . . . . . 27 vi Salgado v. Port Auth. of New York & New Jersey, 105 A.D.3d 417 (1st Dept. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15, 19 Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328 (Ct. App. 1986). . . . . . . 30, 31 Schweitzer v. Gilmore, 251 F.2d 171 (2d Cir. 1958). . . . . . . . . . . . . . . . . . . . . . . . 27 Slattery v. Walt Disney World Co., CIV. 03-267-M, 2003 WL 22888860 (D.N.H., 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Spadaro v. Parking Sys. Plus, Inc., 113 A.D.3d 833 (2d Dept. 2014). . . . . . . . . . 40 Spitzer v. 2166 Bronx Park E. Corps., 284 A.D.2d 177 (1st Dept. 2001). . . . . . . . 13 Stone v. Williams, 97 A.D.2d 509 (2d Dept. 1983). . . . . . . . . . . . . . . . . . . . . . . . . 12 Sweet v. Perkins, 196 N.Y. 482 (Ct. App. 1909). . . . . . . . . . . . . . . . . . . . . . . . 39, 40 Trimarco v. Klein, 56 N.Y.2d 98 (Ct. App. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . 31 Tronlone v. Lac d'Amiante Du Quebec, Ltee, 297 A.D.2d 528 (1st Dept. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12 United States v. Van Schaick, 134 F. 592 (C.C.S.D.N.Y. 1904). . . . . . . . . . . . . . . 27 Vega v. Restani Const. Corp., 18 N.Y.3d 499 (Ct. App. 2012). . . . . . . . . . . . . 10, 11 Vittorio v. U-Haul Co., 52 A.D.3d 823 (1st Dept. 2008). . . . . . . . . . . . . . 10, 15, 19 Voss v. Netherlands Ins. Co., N.Y. Slip Op. 01259 (Ct. App. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 44 Westbrook v. WR Activities-Cabrera Markets, 5 A.D.3d 69 (1st Dept. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 N.Y.3d 470 (Ct. App. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 19 Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851 (Ct. App. 1985). . . . . 10, 19 vii Zuckerman v. City of New York, 49 N.Y.2d 557(Ct. App. 1980) . . . . . . . . 10, 11, 14 STATUTES N.Y. Gen. Oblig. Law § 9-103(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 1 PRELIMINARY STATEMENT Plaintiff Shiby Abraham (“Plaintiff”) commenced this action to recover for Decedent Shibu Abraham’s (“Mr. Abraham” or “Decedent”) tragic, untimely, and entirely preventable death from drowning in the waters adjacent to Defendant’s premises. In the face of Chelsea Piers Management Inc.’s (“Chelsea Piers” or “Defendant”) unsupported and legally erroneous summary judgment motion, the Supreme Court below determined that factual issues remained and, thus, a jury should decide the action. Defendant now appeals that appropriate decision. Plaintiff’s core contention is not radical or even unusual. It is self-evident that the owner of a water-adjacent commercial premises should foresee the possibility that a person could fall into the water. This danger increases exponentially when the premises serves alcoholic beverages and is frequently visited by families with young children. Common law negligence, as well as public policy, demands that the owner institute reasonable safety precautions in order to prevent or reduce injury resulting from such an aquatic accident. Chelsea Piers is such an establishment. It is adjacent to a vast body of water, it serves alcohol, and it is frequented by families with young children. While Chelsea Piers concedes that it has a duty to ensure that its premises are in reasonably safe condition, it never justifies its insistence that – as a matter of law – 2 it is permitted to maintain its piers wholly free of adequate, customary life-saving equipment. This failure is fatal to Chelsea Piers’ position. Chelsea Piers has spent a good deal of effort decrying Mr. Abraham’s conduct leading up to his fall. This is simply a distraction from the fundamental issue of defendant’s duty to safeguard its water-adjacent premises. Decedent’s accident was undeniably foreseeable, regardless of the exact manner in which it transpired. Consider that, instead of Mr. Abraham, a young child visiting Defendant’s commercial premises fell in the water bordering those premises, and that people at the scene were unable to save her due to Chelsea Piers’ negligent failure to have provided any security personnel, life rings, ladders, or other rescue equipment. Simply put, having benefited massively as a desirable commercial location from its proximity to the Hudson River, Chelsea Piers is held to a duty of care with regard to all foreseeable risks related to that body of water immediately adjacent to defendant’s property and within defendant’s control. In both the above hypothetical and in the instant case, there is a genuine triable question whether Chelsea Piers’ negligence in failing to provide life-saving equipment contributed to the drowning. Nor does liability necessarily turn on statutory provisions; absent an applicable statutory violation, the common law negligence standard governs. 3 Nothing legally distinguishes the child hypothetical from the very real tragedy that occurred in this matter. Mr. Abraham fell into the water, and although Thomas Scanlon was at the scene, ready and willing to assist him, he was unable to do so because of the negligent absence of life-saving devices on the premises. Chelsea Piers’ failure to reasonably protect against the risk of death from such a foreseeable accident presents a clear case of triable negligence. The circumstances of this matter are thus ripe with factual issues, warranting the exact result below: summary judgment denial. Despite this inescapable conclusion, Chelsea Piers appeals. It is important to note what is not at issue in this appeal. Crucially, the parties do not dispute the existence of a duty – indeed, the parties even agree on the basic standard pursuant to that duty: that Chelsea Piers owed Mr. Abraham a duty of care to maintain its property in a reasonably safe condition. [See Defendant’s Brief at 1, 24; Record at 11-12, 627, 657]. Thus, the only central dispute in this appeal is whether Chelsea Piers complied with that duty under these particular circumstances. This is not an issue appropriate for determination at the summary judgment stage because, once a duty has been established, “[w]hat safety precautions may reasonably be required of a landowner is almost always a question 4 of fact for the jury.”1 The present action does not invite deviation from this fundamental principle. As a duty undeniably exists here, only questions of fact, credibility, and comparative fault remain. For instance, Chelsea Piers argues that it met its initial burden below by establishing compliance with statutes and regulations. [Defendant’s Brief at 1, 14, 25, 26-32; see also Record at 8-11]. This ignores decades of unambiguous precedent2 and seeks to undermine the very purpose of the common law. Accordingly, Chelsea Piers’ primary argument must be disregarded, leaving it without any showing that it established its prima facie entitlement to judgment as a matter of law. Chelsea Piers further argues that Plaintiff’s expert report is insufficient to raise factual issues, [Defendant’s Brief at 25-32; Record at 12-13], yet it has failed to offer any evidence to contradict the report’s assertions. Chelsea Piers also emphasizes that Plaintiff will have to prove factually that Chelsea Piers’ conduct contributed to Decedent’s death, [Defendant’s Brief at 38-40; Record at 12, 22-23] – true, but in no way does this axiomatic recitation of Plaintiff’s burden at trial support dismissal. Finally, Defendant argues that the principles of proximate cause, [Defendant’s Brief at 32-37], an issue almost invariably reserved for jury determination in negligence actions, requires dismissal. This argument is thoroughly misguided. 1 In re World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 466 (Ct. App. 2011) (quoting Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 520 (Ct. App. 1980)). 2 See Section I.B.1, infra. 5 In short, Defendant brings this appeal solely because the parties dispute the following: 1) the application of the common law duty to the facts; 2) the probative value of an uncontroverted expert report; 3) whether Plaintiff will be able to prove its case at trial; and 4) proximate cause. This appeal is plainly not warranted, as all of the issues in contention must be decided by a trier-of-fact and not as a matter of law. Accordingly, Plaintiff respectfully requests that this Court affirm the Supreme Court’s decision below denying summary judgment. QUESTION PRESENTED Do questions of fact remain as to whether Defendant complied with its common law duty to maintain its premises in a reasonably safe condition in light of foreseeable risks, and, if not, whether its failure to comply with such a duty contributed to Decedent’s death? Supreme Court’s answer: Yes. Suggested answer: Yes. 6 FACTS The basic facts of this case are not in dispute. Shibu Abraham (“Mr. Abraham” or “Decedent”) visited Chelsea Piers on March 31, 2009 with a group of friends. [Record at 69-71]. He and his friends left around 1:30 am on April 1, 2009. [Id.]. A short time later, Mr. Abraham returned to Chelsea Piers to recover an item he had left behind. [Id.]. Thomas Scanlon (“Mr. Scanlon”), an off-duty corrections officer, happened to be present on the pier at that exact time. [Id. at 608-09]. He first observed Mr. Abraham at the gate and heard a “grunt.” [Id. at 608]. No security or other personnel were in the area. [Id.]. A short while later, Mr. Scanlon heard another “grunt,” followed by a splash. [Id. at 608-09, 647-48]. Following the splash, Mr. Scanlon spotted Mr. Abraham in the water 10-15 yards away from where he was standing. [Id. at 71, 609, 648]. Mr. Abraham was flailing his arms. [Id. at 648]. Mr. Scanlon called out to Mr. Abraham several times. [Id. at 610-11]. He then looked around for, but could not find, a life ring, life jacket, or any other type of flotation device or rope nearby. [Id. at 648]. Mr. Scanlon called the police in a final effort to save Mr. Abraham in time. [Id. at 611]. Mr. Scanlon then observed Mr. Abraham go underwater, never to resurface. [Id. at 610-11]. No security personnel were in the area at the time of the accident. [Id. at 608]. Nor did Mr. Scanlon observe any safety equipment, such as rope or life rings, 7 in the area. [Id.].3 However, had one of these life-saving provisions been available, Mr. Scanlon “would have thrown it towards [Mr. Abraham] in the hopes of saving him or [would have] jumped in the water” himself. [Id.]. Plaintiff Shiby Abraham, as administrator of Shibu Abraham’s estate, commenced this action on January 28, 2010. [Id. at 30]. Thomas Ebro (“Mr. Ebro”), an expert in the field of aquatic safety and aquatic accident prevention, prepared a report assessing the accident on behalf of Plaintiff. Mr. Ebro’s professional and educational background extends to “more than 40-years of specialized water safety education, training and experience, including investigation of aquatic accidents and providing forensic consulting services,” which includes: serving in the Marine Corp as a Water Safety Survival Instructor; a degree in Recreation Management and Aquatic Administration; design of a public waterpark; a tenure as Aquatics Director of the Department of Parks and Memorials in Multnomah County, Oregon; another tenure as Senior Aquatic Director for the Department of Parks and Recreation in Los Angeles County, California; several years as the General Manager of a waterfront hotel; extensive experience as a private boat-owner; and approximately twenty-seven years consulting in over 1600 aquatic accident cases on behalf of both plaintiffs and defendants. [Id. at 629-30]. 3 Importantly, Chelsea Piers does not dispute this contention – in other words, whether there were any safety or rescue devices along the pier near the site of Mr. Abraham’s drowning is not at issue in this appeal. 8 In preparing his report, Mr. Ebro relied on his extensive background and experience, his knowledge of customs and practices in the industry, guidelines, regulations enacted by various governmental entities, an on-site inspection of the premises, and a review of the full record. [See generally id. at 629-645].4 Relying on these sources, Mr. Ebro stated that “[i]ndustry custom and practice for protection of workers and the general public on piers and wharves provides that ladder access must be available from the water below to the pier or wharf deck at 400-foot intervals.” [Id. at 633]. He further opined that life rings must, at a minimum, be located 200 feet apart from each other in any area where persons are at risk of drowning. [Id. at 632-34].5 Mr. Ebro ultimately concluded that “Shibu Abraham’s drowning death was foreseeable and could have been prevented,” given that “[p]roactive risk assessment of Chelsea Piers’ premises beforehand, combined with conscientious risk management practice and enforcement by security personal, would most likely have prevented this drowning.” Specifically, Mr. Ebro considered Mr. Scanlon’s presence on the scene and his desire at the time to help save Mr. Abraham, finding that the absence of “a conspicuous emergency life ring 4 See also id. at 641-44 for a list of specific documents, standards, guidelines, evidence, and other sources upon which Mr. Ebro relied. 5 Again, Chelsea Piers does not dispute that it did not comply with these standards. 9 for Mr. Scanlon to throw” and an “accessible ladder . . . duly installed nearby on the pier,” was a “substantial cause of the drowning.” [Id. at 636].6 DECISION BELOW On August 21, 2012, Chelsea Piers moved for summary judgment pursuant to CPLR § 3212. Chelsea Piers’s central arguments were as follows: Compliance with applicable statutes establishes, as a matter of law, that Chelsea Piers maintained its premises in a reasonably safe condition, [Record at 8-11]; Mr. Ebro’s expert report fails to raise issues of fact as it relies, in part, on statutes and regulations that are not binding on Chelsea Piers, [id. at 12-13]; and Plaintiff’s allegations are speculative because Plaintiff cannot prove that Decedent would have lived if safety measures had been in place, [id. at 12, 22-23]. The Supreme Court, Justice Milton A. Tingling, rendered its Decision on July 17, 2013. The decision noted that Plaintiff did not claim that Chelsea Piers’ actions violated any statutes or regulations. The decision further noted that water- adjacent properties present an inherent and foreseeable risk of injury, particularly when alcohol is served on the premises. Ultimately, the Court concluded that issues of fact remain concerning Plaintiff’s common law negligence claims. The Court thus correctly denied summary judgment. [Id. at 6-7]. 6 Mr. Ebro also concluded that “[t]he autopsy report shows alcohol in Mr. Abraham’s blood and probably this also was a contributing factor.” 10 ARGUMENT I. CHELSEA PIERS DID NOT SATISFY ITS PRIMA FACIE BURDEN UNDER THE SUMMARY JUDGMENT STANDARD, AND THUS THE BURDEN NEVER SHIFTED TO PLAINTIFF TO RAISE AN ISSUE OF FACT IN OPPOSITION A. Summary Judgment Standard “It is axiomatic that summary judgment is a drastic remedy.”7 A party moving for summary judgment bears the initial burden of “tendering sufficient evidence to demonstrate the absence of any material issues of fact.”8 The evidence proffered in support must be in admissible form.9 The movant’s prima facie “burden is a heavy one,”10 and the motion must be denied if the moving party fails to eliminate all material questions of fact “regardless of the sufficiency of the opposing papers.”11 The movant cannot “merely point[] to gaps in the plaintiff’s proof, rather than affirmatively demonstrating the merit of [its] defense.”12 7 Tronlone v. Lac d'Amiante Du Quebec, Ltee, 297 A.D.2d 528, 528-29 (1st Dept. 2002) aff'd, 99 N.Y.2d 647 (Ct. App. 2003). See also Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503 (Ct. App. 2012) (“Summary judgment is a drastic remedy . . .”). 8 JMD Holding Corp. v Congress Fin. Corp., 4 N.Y.3d 373, 384 (Ct. App. 2005) (quoting Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 (Ct. App. 1986)). 9 Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (Ct. App. 1980) (citing CPLR 3212 (b)). 10 William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 N.Y.3d 470, at *2 (Ct. App. 2013). 11 Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 852 (Ct. App. 1985). 12 Vittorio v. U-Haul Co., 52 A.D.3d 823, 823 (1st Dept. 2008). See also Salgado v. Port Auth. of New York & New Jersey, 105 A.D.3d 417, 417 (1st Dept. 2013) (“American failed to establish its entitlement to judgment as a matter of law in this action where plaintiff alleges that she slipped and fell on a wet floor . . . . American attempted to establish the absence of negligence by merely pointing to gaps in plaintiff's account.”). 11 If the moving party meets its initial burden, the burden then shifts to the opposing party to show that a material issue of fact exists.13 In a wrongful death action, courts recognize the difficulty of recreating the exact circumstances of the accident without the benefit of the decedent’s testimony; accordingly, “in a death case a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence.”14 When resolving a motion for summary judgment, the court must view all of the evidence in a light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor.15 Generally, credibility determinations should not be made when resolving a motion for summary judgment.16 As such, ‘[t]he assessment of the value of a witnesses’ testimony constitutes an issue for resolution by the trier of fact, and any apparent discrepancy between the testimony and the evidence of record goes only to the weight and not the admissibility of the testimony.”17 Summary judgment must not be granted “where there is any doubt as 13 See Zuckerman, 49 N.Y.2d at 562; Lewis v Safety Disposal Sys. of Pa., Inc., 12 A.D.3d 324, 325 (1st Dept. 2004). 14 Noseworthy v. City of New York, 298 N.Y. 76, 80 (Ct. App. 1948). 15 See Vega, 18 N.Y.3d at 503; Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 N.Y.3d 96, 105 (Ct. App. 2006); Johnson v Outdoor Installations, LLC, 113 A.D.3d 576, 576 (1st Dept. 2014). 16 See Vega, 18 N.Y.3d at 505; Beaubrun v Boltachev, 111 A.D.3d 494, at *1 (1st Dept. 2013). 17 Dollas v W.R. Grace & Co., 225 A.D.2d 319, 321 (1st Dept. 1996) (internal citations and quotation marks omitted). See also id. (“[The] conclusion that plaintiff's allegations are not credible therefore constitutes the impermissible determination of an issue that must await trial. The function of a court entertaining a motion for summary judgment is one of issue finding, not issue determination, and any conflict between plaintiff's allegations and the documentary evidence merely presents an issue of credibility for resolution at trial.”). 12 to the existence of a triable issue of fact.”18 1. Specific Burden in Premises Liability Cases In order to determine the movant’s summary judgment burden in a specific matter, it is critical to first determine the elements of the cause of action at issue. The Court of Appeals has long recognized that “a landowner owes a duty of care to maintain his or her property in a reasonably safe condition.”19 This duty arises from the well-worn public policy maxim that “the person in possession and control of property is best able to identify and prevent any harm to others.”20 The duty exists “whether the property is open to the public or not.”21 “Once the existence of a duty has been established . . . [w]hat safety precautions may reasonably be required of a landowner is almost always a question of fact for the jury.”22 In determining the scope of the duty, the jury may consider “[t]he use to which one's property is put, and the frequency of that use by others . . . in determining the likelihood of injury, the seriousness of the injury and the burden of avoiding the risk.”23 Liability will be imposed when “the defendant either created 18 Tronlone, 297 A.D.2d at 528-29. 19 Gronski v. Cnty. of Monroe, 18 N.Y.3d 374, 379 (Ct. App. 2011). See also Peralta v. Henriquez, 100 N.Y.2d 139, 144 (Ct. App. 2003); Basso v. Miller, 40 N.Y.2d 233, 240-41 (Ct. App. 1976). 20 Butler ex rel. Butler v. Rafferty, 100 N.Y.2d 265, 270 (Ct. App. 2003) (citing Prosser and Keeton, Torts § 57, at 386 (5th ed)). 21 Peralta, 100 N.Y.2d at 144. 22 Stone v. Williams, 97 A.D.2d 509, 510-11 (2d Dept. 1983) aff'd, 64 N.Y.2d 639 (Ct. App. 1984) (quoting Nallan, 50 N.Y.2d 507, 520 n8; Muallem v. City of New York, 82 A.D.2d 420, 424 (2d Dept. 1981) aff'd, 56 N.Y.2d 866 (Ct. App. 1982)). 23 Peralta, 100 N.Y.2d at 144. 13 the condition, or failed to remedy it, despite actual or constructive notice thereof.”24 Thus, for a defendant to be entitled to summary judgment in a premises liability case predicated on negligence, the defendant must negate these elements of liability by showing that the premises were in a reasonably safe condition as a matter of law.25 In short, the defendant must make a prima facie showing that no dangerous condition existed, or that if one did it did not create or have notice of the condition.26 B. Chelsea Piers Did Not Satisfy its Prima Facie Burden Chelsea Piers has plainly “failed to establish [its] prima facie entitlement to judgment as a matter of law because [it] did not make a showing that [it] maintained [its] premises in a reasonably safe condition.”27 To the contrary, 24 Haseley v. Abels, 84 A.D.3d 480, 482 (1st Dept. 2011) (internal citations omitted). 25 Spitzer v. 2166 Bronx Park E. Corps., 284 A.D.2d 177, 177 (1st Dept. 2001) (“To prevail on a motion for summary judgment for lack of notice, defendants were required to make a prima facie showing which affirmatively established the absence of notice as a matter of law.”); see also Pampillonia v. Burducea, 68 A.D.3d 1081, 1081 (2d Dept. 2009) (holding that a defendant premises owner must affirmatively establish that the premises were reasonable safe as a matter of law). 26 See Petruzzi v. New York Mercantile Exch., Inc., 809 N.Y.S.2d 483, 483 (1st Dept. 2005) (“We agree that defendant failed to establish as a matter of law that it maintained the property in a reasonably safe manner and that it did not create a dangerous condition which posed a foreseeable risk of injury to individuals expected to be present on the premises.”); Westbrook v. WR Activities-Cabrera Markets, 5 A.D.3d 69, 75 (1st Dept. 2004) (“The burden on this summary judgment motion was on defendant to establish in the first instance that it did not create the condition or have notice of it.”). Note, however, that “if defendant created the condition, the notice requirement [is] inapplicable.” Id. 27 Pampillonia, 68 A.D.3d at 1081. See also id. at 1081-82 (“In light of this determination, we need not examine the sufficiency of the plaintiff's papers submitted in opposition.”). 14 Chelsea Piers has not even seriously attempted to establish its prima facie entitlement to summary judgment. Of course, as stated above, it is indisputable that the movant carries the burden of submitting evidence in admissible form sufficient to entitle it to judgment as a matter of law.28 Yet Chelsea Piers has submitted: no opinion or other evidence showing that the premises were reasonably safe; no expert report rebutting Plaintiff’s contentions; no evidence negating causation; no medical opinion giving rise to any inference that decedent would have died, even if reasonable safety precautions were present; no medical opinion that the decedent’s condition prevented him from being saved by swimming to a ladder or grabbing onto a buoy; and no evidence whatsoever of the custom and practice in its industry. While Chelsea Piers did offer certain evidence in support of its motion, it has not identified specific evidence and explained how it purportedly negates liability. Chelsea Piers does attack the credibility of Mr. Ebro’s report, and makes general references to the facts as shown by the various reports and depositions. However, this falls far short of submitting evidence affirmatively establishing its defense, as is its burden. 28 Zuckerman, 49 N.Y.2d at 562 (“To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor, and he must do so by tender of evidentiary proof in admissible form.” (emphasis added) (citing CPLR § 3212(b))). 15 Chelsea Piers has attempted to satisfy its prima facie burden “by merely pointing to gaps in plaintiff's account,”29 which cannot suffice on a summary judgment motion. Chelsea Piers’ failure to proffer sufficient evidence in support of its motion is fatal, regardless of the sufficiency of Plaintiff’s opposition, and thus the Supreme Court’s decision denying summary judgment was in perfect accord with long-standing black letter law. Moreover, Chelsea Piers does not contest the existence of a duty. To the contrary, both parties agree that “a landowner owes a duty of care to maintain his or her property in a reasonably safe condition,” and that Chelsea Piers was subject to this common law duty.30 When a duty has been established, “[w]hat safety precautions may reasonably be required” is almost universally a question of fact for the jury.31 To establish that this rule does not apply, Chelsea Piers would have had to affirmatively prove that its safety precautions were reasonable under the circumstances. Chelsea Piers made no such effort, and for good reason. It cannot justify its failure to take reasonable steps to prevent or minimize the risk of injury from foreseeable accidents along its pier. This failure is particularly troublesome given that Chelsea Piers is open late, serves alcohol to its patrons, and invites 29 See also Vittorio, 52 A.D.3d at 823. Salgado, 105 A.D.3d at 417 (“American failed to establish its entitlement to judgment as a matter of law in this action where plaintiff alleges that she slipped and fell on a wet floor . . . . American attempted to establish the absence of negligence by merely pointing to gaps in plaintiff's account”). 30 Gronski, 18 N.Y.3d at 379. See also Defendant’s Brief at 1, 24; Record at 11-12, 627, 657. 31 In re World Trade Ctr. Bombing Litig., 17 N.Y.3d at 466 (quoting Nallan, N.Y.2d at 520)). 16 families with young children onto the premises. Given “[t]he use to which [the] property is put, and the frequency of that use by others,” along with the “likelihood of injury” from aquatic accidents, and “the seriousness of the injury,”32 up to and including death, Chelsea Piers would have an uphill battle establishing as a matter of law that the total absence of life rings, ladders, preservers, buoys, and adequate security personnel in the area is reasonable. 1. Compliance with Statutes and/or Regulations is Not Decisive In addition to its failure to offer sufficient admissible evidence negating liability, Chelsea Piers also misstates the applicable law. Chelsea Piers repeatedly contends that it “established its prima facie entitlement to judgment as a matter of law by demonstrating that there were no regulations requiring that life rings, ladders or surveillance equipment be present on the pier.”33 This is backwards. While evidence of a statutory violation can establish a breach of duty under the doctrine of negligence per se, and thus entitle the plaintiff to judgment,34 evidence of statutory compliance does not alone establish the absence of negligence as a matter of law. The Court of Appeals stated as much with perfect clarity in Kellman v. 45 Tiemann Associates: “[c]ontrary to 32 Peralta, 100 N.Y.2d at 144. 33 Defendant’s Brief at 25; see also id. at 1, 14, 26-32. 34 Elliott v. City of New York, 95 N.Y.2d 730, 734 (Ct. App. 2001) (“As a rule, violation of a State statute that imposes a specific duty constitutes negligence per se, or may even create absolute liability.”). Furthermore, evidence of a regulatory violation does not establish negligence per se, but is considered some evidence of negligence. Id. 17 defendant landlord's contentions, its alleged compliance with the applicable statutes and regulations is not dispositive of the question whether it satisfied its duties under the common law.35 Both below and on appeal, Chelsea Piers has merely cited its statutory and regulatory compliance;36 it has offered no other argument or evidence to show that it satisfied its initial burden as the movant. In other words, Chelsea Piers has acknowledged a common law duty, yet only claimed compliance with a statutory one. Unquestionably, as demonstrated by the long line of case cited supra, this is insufficient to establish reasonableness as a matter of law. The reason for this rule is rooted in well-founded public policy. A defendant's duty is to conduct itself with reasonable care under the circumstances as determined by the objective standard of the “reasonable person.” Regulations and statutes may impose minimum safety requirements which fall below what 35 Kellman v. 45 Tiemann Associates, Inc., 87 N.Y.2d 871, 872 (Ct. App. 1995) (emphasis added). See also Lesocovich v. 180 Madison, 81 N.Y.2.d 982, 985 (Ct. App. 1993); (holding that the absence of a statutory or regulatory violation alone does not mean that the premises owner cannot be liable under the common law); Kelly v. Metro. Ins. & Annuity Co., 82 A.D.3d 16, 23 (1st Dept. 2011) (finding it reversible error to “[leave] the jury with the distinct impression that defendants' compliance with the building code was a defense to liability.”); Larkin v. Radio City Music Hall Corp., 282 A.D.2d 405, 406 (1st Dept. 2001) (“In any event, Code compliance would not be dispositive of whether the landlords had a common-law duty to protect plaintiff against an unguarded 27–foot drop.”); Feiner v. Calvin Klein, Ltd., 157 A.D.2d 501, 501 (1st Dept. 1990) (“[I]t is well established in this state that, while compliance with a statute may constitute some evidence of due care, it does not preclude a finding of negligence.”). 36 Defendant’s Brief at 25; Record at 17. 18 constitutes reasonable care under the circumstances.37 The common law compliments statutory standards by imposing an across-the-board reasonableness standard, thus preventing unreasonable conduct even where statutes fall short of proscribing such conduct. Thus, even if Chelsea Piers complied with applicable statutes or regulations here, its actions could still prove unreasonable. Chelsea Piers cites Charles v. City of Yonkers,38 a Second Department case, in support of its proposition that statutory and regulatory compliance satisfies a premise owner’s prima facie burden. However, Chelsea Piers omits a crucial aspect of that case’s ruling: “defendants . . . demonstrate[ed] [both] that New York State does not have regulations governing the minimum age or skill level of students who are permitted to play on monkey bars, and that they provided adequate supervision during the subject recess period.”39 Thus, in stark contrast to Chelsea Piers’ total failure here to “tender [sufficient] evidentiary proof in admissible form” in support of its motion, the defendants in Charles affirmatively demonstrated that they acted reasonably. Charles should not be read to alter the universal rule that compliance with a statute alone does not establish 37 See, e.g., Duncan v. Corbetta, 178 A.D.2d 459, 459 (2d Dept. 1991) (“Proof of a general custom and usage is admissible because it tends to establish a standard by which ordinary care may be judged even where an ordinance prescribes certain minimum safety requirements which the custom exceeds.”). 38 Charles v. City of Yonkers, 103 A.D.3d 765 (2d Dept. 2013); Defendant’s Brief at 25. 39 Charles, 103 A.D.3d at 766. This ruling is especially relevant, as one of the central issues in the current matter is whether Chelsea Piers’ supervision and security policy was reasonable. 19 reasonableness as a matter of law, and Chelsea Piers’ arguments to the contrary must be rejected. 2. Plaintiff’s Claims are Not Speculative Chelsea Piers next argues that Plaintiff’s claims are “speculative” because “[t]he record is devoid of any evidence” that Mr. Abraham’s life would have been saved in the absence of Chelsea Piers’ negligence. Once again, Chelsea Piers ignores the summary judgment standard. It is not Plaintiff’s burden to prove its case at this stage by pointing to evidence in its favor, but it is Chelsea Piers’ burden, as the movant, to affirmatively prove the merits of its defense. Chelsea Piers has not carried this “heavy” burden,40 but instead has simply “point[ed] to [supposed] gaps in the plaintiff’s proof”41 by arguing that Plaintiff’s contentions are “speculative.” Instead of, for instance, introducing admissible medical evidence or expert opinion to show that Mr. Abraham would have died regardless of the presence of life-saving equipment, Chelsea Piers has simply quibbled with the evidence Plaintiff has thus far amassed. Clearly, then, Chelsea Piers has not met its prima facie burden (nor has it seriously attempted to) and, “regardless of the sufficiency of [Plaintiff’s] opposing papers,”42 cannot seek a reversal by making 40 William J. Jenack Estate Appraisers & Auctioneers, 22 N.Y.3d at 470. 41 Vittorio, 52 A.D.3d at 823. See also Salgado, 105 A.D.3d at 417 (“American failed to establish its entitlement to judgment as a matter of law in this action where plaintiff alleges that she slipped and fell on a wet floor . . . . American attempted to establish the absence of negligence by merely pointing to gaps in plaintiff's account.”). 42 Winegrad, 64 N.Y.2d at 851. 20 meritless “speculation” arguments. Chelsea Piers recites the following as factors potentially affecting Mr. Abraham’s death: his intoxication, “the current,” the “temperature of the water,” “[his] ability to swim,” “whether the clothes he was wearing affected his ability to swim,” and “whether he was injured upon falling into the Hudson River.”43 Far from requiring reversal, the mere existence of these myriad questions cuts at the heart of Chelsea Piers’ summary judgment motion, as it shows that – contrary to Chelsea Piers’ contentions – many issues of fact remain. A slight twist on the facts, once again, reveals the error of Chelsea Piers’ argument. Imagine that a child fell into the water after running along the pier, and a crowd of onlookers was willing but unable to assist her due to the lack of life- saving equipment. Summary judgment would not be appropriate simply because it cannot be known with certainty whether the child would have survived had life- saving equipment been present. The defendant would be entitled to argue that the child’s lack of swimming abilities, young age, disorientation, fear, or other conditions made rescue more difficult or even impossible; nonetheless, a court would not be able to render judgment as a matter of law. The same is true here: a jury will have to consider the evidence and render a determination on the many remaining questions of fact. Accordingly, the Supreme Court’s decision denying 43 Record at 24. 21 summary judgment fully comports with the well-established standard for determination of such motions. The cases Chelsea Piers cites do not require a different result. For example, Chelsea Piers cites Briggs v. State, a drowning case, in support of the contention that Plaintiff’s allegations are “speculative.”44 At first blush, Briggs seems to support Chelsea Piers’ position, as the Court of Claims held that the decedent’s actions severed the State’s liability, nothwithstanding the absence of life rings or other safety devices.45 However, Chelsea Piers neglects to note that Briggs v. State did not involve a summary judgment analysis at all. To the contrary, the Court in Briggs heard testimony from both parties and then rendered a decision in its role as fact-finder.46 In fact, after the claimants in Briggs rested their case, the State moved to dismiss and was denied.47 Furthermore, at issue in Briggs was a standard far stricter than the common law standard that governs the present action. The Court was tasked with applying General Obligations Law § 9-103, which “extends broad immunity from liability to private as well as governmental landowners against claims for ordinary negligence brought by members of the public who come on their property to engage in certain enumerated activities where the land is suitable 44 Defendant’s Brief at 35, 38. 45 Briggs v. State, 862 N.Y.S.2d 806, at *20 (Ct. Cl. 2005). At the outset, it is important to note that Briggs does not once use the word “speculative” or any derivation thereof. 46 Id. at **1, 17. 47 Id. at *17 (“Upon the conclusion of this witness's testimony claimant rested. Defense counsel moved to dismiss the claim and then called Janice Briggs to the stand.”). Thus, the Court was acting as fact-finder in Briggs. 22 for those activities.”48 The Court held that “the claimant was required to establish willful or malicious conduct on the part of the defendant,” yet “failed to sustain the high-threshold demonstration required to prove such conduct, [and thus] the claim must be dismissed.”49 Clearly, Briggs has no application to the instant debate, and its reference in Chelsea Piers’ brief is unwarranted.50 Chelsea Piers cannot credibly ask for a reversal in its favor by citing a bench trial decision that involved a more stringent, statutory standard of liability. This is especially true considering that the Court of Claims in Briggs rejected the State’s attempt to dismiss the case prior to the close of evidence. Indeed, if anything, Briggs greatly supports the Supreme Court’s reasoning and decision below: if issues of fact precluded dismissal under the “willful or malicious” standard in Briggs, certainly issues of fact preclude dismissal under the negligence standard here. In contrast to Chelsea Piers’ unsupportive citations, several decisions show that Plaintiff’s factual allegations can readily give rise to liability and are not “speculative” in the slightest. Indeed, several decisions show that the failure to 48 Id. at 17 (quoting Perrott v. City of Troy, 261 A.D.2d 29, 30 (3d Dept. 1999)). Note that the enumerated activities under § 9-103 are as follows: “hunting, fishing, organized gleaning, . . . canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, horseback riding, bicycle riding, hang gliding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for non-commercial purposes or training of dogs,” N.Y. Gen. Oblig. Law § 9-103(a)(1), and thus this statute is inapplicable to the instant matter. 49 Briggs, 862 N.Y.S.2d at *18. 50 Chelsea Piers also cites Overton v. City of New York, 89 N.Y.2d 850 (Ct. App. 1996) – another post-judgment decision and not a summary judgment decision. 23 provide life-saving equipment can be found to warrant recovery in a negligence action. In Butler v. Seitelman, the defendants had hired the decedent to complete a paint job on their lake house and, when taking the boat out on the lake to observe the completed job, the decedent fell in and drowned.51 The plaintiff established, inter alia, “that life preservers were not readily accessible or even visible on defendants' premises.”52 The Court of Appeals held that summary judgment should have been denied, reasoning that the plaintiff’s factual claims “if believed, would justify a fact finder in concluding that defendants had a duty to make flotation devices available to the decedent, that defendants breached that duty and, finally, that their breach was the proximate cause of the decedent's drowning.” The Court explicitly noted that the lack of a statutory or regulatory violation was not dispositive.53 The Court also addressed the defendants’ argument that “the decedent was a poor swimmer, that he may have consumed some beer before the accident and that he may have showed poor judgment in taking out the rowboat without the necessary safety equipment,” finding them “all relevant to determining the decedent's comparative culpability for the fatal accident,” but not “the kind of unforeseeable or reckless conduct that would be deemed, as a matter of law, to 51 Butler v. Seitelman, 90 N.Y.2d 987, 988 (Ct. App. 1997). 52 Id. at 988-89. 53 Id. at 989. Hopefully, this holding, along with the plentiful other authority containing the same holding, will finally put to rest Chelsea Piers’ erroneous assertion that the lack of a statutory violation alone sufficed to satisfy its prima facie burden. 24 interrupt the causal connection between the negligence ascribed to defendants and the decedent's injury.”54 Butler demonstrates that a plaintiff in a drowning case can clearly predicate liability on the failure to provide life-saving equipment. This decision further shows that any potential factors increasing or decreasing the chance of death in a drowning case (for instance, the decedent’s intoxication or swimming abilities) must be decided by a trier-of-fact. In Butler, summary judgment was inappropriate, regardless of whether the decedent might still have died if life preservers had been accessible.55 Chelsea Piers’ unfounded insistence that Plaintiff’s claims are speculative, requiring summary judgment, are thus meritless. The Second Department case Herrera v. Piano also involved similar facts and is instructive here. In Herrera, the decedent drowned in the deep end of the defendant-owners’ swimming pool.56 “The plaintiff commenced this wrongful death action, contending, inter alia, that the owners were negligent in failing to equip the pool, which contained deep water, with any suitable or readily accessible 54 Id. To the extent that Chelsea Piers focuses on Mr. Abraham’s intoxication and his own negligence, Butler – along with the other relevant case law and discussion cited herein, see Section III, infra – shows that these facts do not preclude liability, but only speak to comparative fault as assessed by the trier of fact. 55 While Chelsea Piers may emphasize that the decedent in Butler was an invitee, while Mr. Abraham here was not, this is not dispositive since, as Chelsea Piers readily concedes, the standard of care at issue in both instances is the same, namely that “a landowner owes a duty of care to maintain his or her property in a reasonably safe condition.” 56 Herrera v. Piano, 125 A.D.2d 548, 548 (2d Dept. 1986). 25 life lines, life preservers, life rings or other rescue equipment.”57 First recognizing that the owners had “duty to maintain the pool in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk,”58 the Appellate Division concluded that “[t]he evidentiary facts set forth by the plaintiff, which were conceded to be true for purposes of the motion for summary judgment, suffice to raise a triable issue as to whether or not there was negligence in failing to equip the pool with rescue equipment. Accordingly, the court correctly denied the motion for summary judgment.”59 Similarly here, Plaintiff’s offered facts, which must be conceded as true, suffice to raise a triable issue as to whether reasonable life-saving equipment would have saved Mr. Abraham’s life. While Herrera involved a swimming pool and the present matter involves a pier, the “likelihood of injury to others [and] the seriousness of injury” are identical in both – it is highly foreseeable that a person could fall into open water and drown to their death in the absence of adequate rescue equipment. Plaintiff thus respectfully posits that Herrera’s reasoning and ruling should govern here. 57 Id. 58 Id. at 548-49. 59 Id. at 549 (internal citations omitted) (citing generally American Law Reports, Liability of Operator of Swimming Facility for Injury or Death Allegedly Resulting from Absence of or Inadequacy in Rescue Equipment, 87 A.L.R.3d 380). 26 Additionally, the factual circumstances in O’Keeffe v. State are precisely on point and the decision should govern the result here. In O’Keeffe, a father and his two sons were walking along a boardwalk in a State Park when one of the sons fell into the water, prompting the other son to jump in after him.60 Their father “search[ed] unsuccessfully for some form of equipment to pull them from the water,” and then jumped in himself. All three drowned. The Court of Claims, after a non-jury trial,61 “found that the State was negligent in failing to provide life- saving equipment and that such failure was a proximate cause of the three deaths.” The Appellate Division affirmed: The State, as a landowner, has a duty to exercise reasonable care in the maintenance and control of its parks to prevent injury to foreseeable users of its facilities. Where it conducts dangerous activities or allows dangerous conditions to exist, the State must undertake reasonable measures to prevent an injury or neutralize the condition. Whether the State undertook reasonable measures in this case “requires a factual weighing of the severity of potential injuries against the burden on the landowner to avoid the risk.” . . . . During the boating season, the State provided lifesaving equipment at the boardwalks, but the equipment was stored during the off-season when people were invited to fish and thus, no equipment was available on the date of this tragic accident . . . . [T]he failure to post any warning or to provide lifesaving equipment constituted a failure to exercise reasonable care to prevent foreseeable injury.62 The principles of O’Keeffe are clearly applicable here. If the Appellate Division could affirm that, not only did triable issues of fact exist, but in fact 60 O'Keeffe v. State, 140 A.D.2d 998, 998 (2d Dept. 1988). 61 Assumedly, then, the case had survived the summary judgment stage in order to advance to trial. 62 Id. at 998-99 (emphases added) (internal citations omitted) 27 liability existed, stemming primarily from the State’s failure to “provide lifesaving equipment,” then it is eminently clear that issues of fact concerning Chelsea Piers’ failure to provide supervision, ladders, life rings, or other rescue equipment abound. Chelsea Piers’ contention that Plaintiff’s well-founded theory of liability is nothing more than “speculation” is thus meritless.63 63 In addition to the New York State cases cited above, decisions from other jurisdictions show that liability predicated on a water-adjacent premise’s failure to provide security and/or safety and rescue equipment is perfectly viable. See, e.g., United States v. Van Schaick, 134 F. 592, 608 (C.C.S.D.N.Y. 1904) (holding the directors of a steamboat company negligent in failing to provide life preservers, as a result of which many passengers drowned); Schweitzer v. Gilmore, 251 F.2d 171, 172-73 (2d Cir. 1958) (applying CT law) (concerning a wrongful death action brought after husband drowned while swimming in lake next to defendant’s resort; at trial, the charge “expressly left to the jury whether or not the defendants were negligent in failing to take greater ‘safety precautions such as lifeguards, lifeboats or life rings’”; the Second Circuit affirmed that this charge was correct); McFarland v. Grau, 305 S.W.2d 91, 92 (Mo. Ct. App. 1957) (holding, in an action for the death of a young boy resulting from drowning in a lake, with the premises owner as defendant, that question remained for jury as to whether the defendant’s negligence in failing to provide warnings as to depth of water and in failing to provide appliances, ropes and persons to supervise the swimming area and rescue swimmers when in danger, was proximate cause of death of boy); Ehehalt v. Nyari O'Dette, Inc., 85 Pa. Cmwlth. 94, 98-99 (1984) (considering a defendant Commonwealth that allowed a restaurant on its land and adjacent to water, and where one of decedent restaurant patron drowned, finding that “this record justifies the 70% negligence assessment against the Commonwealth because the Commonwealth failed to properly warn, maintain or supervise the park canal area.”); Slattery v. Walt Disney World Co., CIV. 03-267-M, 2003 WL 22888860, at *4 (D.N.H., 2003) (although in the context of forum non conveniens motion, noting that the reason that Florida would be a more convenient forum was that the pier had “inadequate lighting, insufficient guard rails, and no written warnings describing the perils of falling into the pond. Should this case proceed to trial, the parties (or, at a minimum, Disney World) would likely want the jury to take a view of that pier.”). See also Sadler v. Pennsylvania R. Co., 159 F.2d 784, 786 (4th Cir. 1947) (holding that “the duty rests upon the vessel to rescue a member of the crew who has fallen overboard . . . [which] necessarily implies the duty to provide the means of rescue,” which would normally include making “an effective lifeboat, available life preservers, or life rings” available “for instant use when needed”; as such, “it was for the jury to say whether the failure of the defendant to have life saving apparatus available” constituted negligence contributing to decedent’s drowning). 28 II. EVEN ASSUMING THAT CHELSEA PIERS DID SATISFY ITS INITIAL BURDEN AS THE MOVANT, PLAINTIFF RAISED SEVERAL ISSUES OF FACT IN OPPOSITION Chelsea Piers plainly failed to satisfy its prima facie entitlement to judgment as a matter of law, as it did not proffer sufficient evidence in admissible form to support its motion. However, even assuming that Chelsea Piers had satisfied its initial burden, Plaintiff certainly raised issues of fact in opposition. Plaintiff’s expert report, together with Mr. Scanlon’s affidavit and the undisputed facts, raise genuine issues of fact as to whether Chelsea Piers complied with the standard of care and whether its failure to do so contributed to Mr. Abraham’s death. This is especially true considering that, in a death case such as this one, the plaintiff is held to a slightly lower burden, given that the decedent cannot give live testimony on the exact circumstances of his or her injury.64 A. Plaintiff’s Expert Report Raises Issues of Fact Plaintiff’s expert, Mr. Ebro, stated in his report that “[i]ndustry custom and practice for protection of workers and the general public on piers and wharves provides that ladder access must be available from the water below to the pier or wharf deck at 400-foot intervals, including conspicuous accessibility to Coast Guard approved 30-inch life rings attached to at least 90-feet of line.”65 Mr. Ebro 64 Noseworthy, 298 N.Y. at 80. 65 Record at 632. 29 found that Chelsea Piers did not comply with this custom and practice,66 and thus Mr. Ebro opined that the premises “[were] unsafe because there were no ladders or life rings available at the time Mr. Abraham entered the water.”67 The report concluded that “[Mr.] Abraham’s death was needless and it could have been prevented by Chelsea Piers,” and that Mr. Abraham would have likely survived in the absence of Chelsea Piers’ negligence.68 Mr. Ebro’s report raised genuine issues of fact concerning the standard of care,69 the safety of Chelsea Piers’ premises, and the causal link between Chelsea Piers’ negligence and Mr. Abraham’s death. In response, Chelsea Piers submitted no expert report of its own, nor did Chelsea Piers submit medical evidence, opinion testimony, or any other evidence intended to controvert Mr. Ebro’s conclusions. 1. The Expert’s Reliance in Part on Non-Binding Regulations, Statutes, and Guidelines was Proper Cheslea Piers argues that the expert report’s “reliance on inapplicable regulatory provisions and guidelines is improper,” and that “[i]n the absence of any proof that these guidelines or recommendations have been adopted in actual 66 Importantly, Chelsea Piers does not dispute that it did not comply with what Mr. Ebro states is the custom and practice. While Chelsea Piers does note that Mr. Ebro’s inspection of the premises, during which he found a life ring bracket containing a coiled line but no ring, occurred roughly two years after the incident, it does not posit – implicitly or explicitly – that the conditions so changed during this time that the inspection was valueless. In short, in no way does Chelsea Piers quibble with the report’s actual conclusions. 67 Record at 633. 68 Id. at 638-39. 69 Again, having established the existence of a duty, compliance with the standard of care is an issue for jury determination. In re World Trade Ctr. Bombing Litig., 17 N.Y.3d at 466. 30 practice, they cannot be held to impose a heightened standard of care upon Chelsea Piers.”70 This argument is unavailing. If a statute, ordinance, or regulation sets a standard, although not for the protection of the class of persons at issue in the litigation, it may not be charged to the jury as law applicable to the case (in other words, it cannot establish negligence per se); however, it may properly be the subject of expert testimony to prove a standard of care. For instance, in Sawyer v. Dreis, the plaintiff, a sheet metal worker, sought recovery for injuries sustained when his hand was crushed in a press brake.71 The plaintiff’s expert testimony included discussion of the American National Standards Institute’s (“ANSI”) standards, which, while not binding under the circumstances, the expert relied on in part as evidence of custom and practice in the industry.72 The Court of Appeals held that such testimony “[was] properly admitted and could be considered by the jury as some evidence of negligence if it first found that the standards set forth in the booklet represented the general custom or usage in the industry.”73 The Court’s ruling fully applies to the current action: the jury will be able to determine whether, among other evidence, the OSHA regulations and New York Code provisions referenced in Mr. Ebro’s report 70 Defendant’s Brief at 26. Moreover, it is unclear why Chelsea Piers labels the garden-variety common law duty a “heightened” standard of care. 71 Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 331 (Ct. App. 1986). 72 Id. at 336. 73 Id. at 337. Importantly, Sawyer was a post-judgment decision, showing that the expert’s reliance on the ANSI standards was clearly admissible and raised issues of fact at the summary judgment stage. 31 “represent[] the general custom or [practice]”;74 if yes, the jury may properly conclude that non-compliance constitutes “some evidence of negligence.” Similarly, in Trimarco v. Klein, the plaintiff suffered severe injuries when the sliding glass door in his bathroom shattered.75 The plaintiffs introduced two statutes that required newly-made sliding glass doors to be constructed from safety glass; these statutes, however, did not apply to existing doors like the one at issue.76 The plaintiff’s expert still relied on these statutes as some evidence in concluding that the custom and practice in the industry was to use safety glass.77 The Court ultimately held that the statutes themselves should not have been introduced into evidence, but that the plaintiff nonetheless made out a prima facie case through the expert’s custom and practice testimony.78 Applying the principles of Trimarco, the Appellate Division in Landry v. Gen. Motors denied summary judgment in a construction accident case. The Court stated the following: “[a]lthough we have held that OSHA regulations cannot provide the basis for a Labor Law § 241 cause of action, there is no reason that a violation of OSHA regulations, like other Federal or State regulations, should not 74 This decision also shows that it is the jury’s job to determine custom and practice once presented with all the evidence, as this is an issue ill-suited for determination as a matter of law. 75 Trimarco v. Klein, 56 N.Y.2d 98, 102 (Ct. App. 1982). 76 Id. at 102-04. 77 Id. at 104-05. 78 Landry v. Gen. Motors Corp., Cent. Foundry Div., 210 A.D.2d 898, 898 (4th Dept. 1994). 32 be considered as some evidence of negligence under . . . the common law.”79 Thus, in the present action, while OSHA and New York Code regulations will not be introduced into evidence, they can certainly form a part of the basis for Mr. Ebro’s expert report for purposes of determining whether the report suffices to defeat summary judgment. The facts of Dash by Dash v. City of New York are particularly pertinent here. The infant plaintiff fell from the jungle gym when jostled by another child, sustaining serious injuries.80 The plaintiff did not claim that the playground construction company caused the fall, but instead that it failed to prevent injury in the event of such a highly foreseeable accident, namely because “there was no shock absorbing padding on the asphalt pavement around the base of the slide, and there were no handrails to grasp on the wooden blocks leading up to the slide.”81 The Appellate Division denied summary judgment, finding that the plaintiff submitted two “persuasive expert opinions” that raised issues of fact, despite the experts’ reliance in part on the non-binding Consumer Product Safety Commission guidelines.82 Both Dash and the present action involve defendants who did not cause the accidents in question, but were negligent in failing to protect against injury in the event of such a foreseeable accident. Thus, like the experts in Dash, 79 Id. (emphases added) (internal citations omitted). 80 Dash by Dash v. City of New York, 236 A.D.2d 579, 579 (2d Dept. 1997). 81 Id. 82 Id. 33 Mr. Ebro was properly able to partially rely on non-binding guidelines in determining what Defendant should have done to prevent Mr. Abraham’s death. 2. Plaintiff’s Expert Properly Relied on Other Sources in Addition to the Cited Statutes, Regulations and Guidelines In addition to resting on unsound legal grounds, Chelsea Piers operates under the mistaken belief that Mr. Ebro’s conclusions were solely based on the statutes and regulations cited in the report. To the contrary, Mr. Ebro relied on his “more than 40-years of specialized water safety education, training and experience, including investigation of aquatic accidents and providing forensic consulting services,” which includes: serving in the Marine Corp as a Water Safety Survival Instructor; a degree in Recreation Management and Aquatic Administration; designing a public waterpark; a tenure as Aquatics Director of the Department of Parks and Memorials in Multnomah County, Oregon; another tenure as Senior Aquatic Director for the Department of Parks and Recreation in Los Angeles County, California; several years as the General Manager of a waterfront hotel; extensive experience as a private mariner; and approximately twenty-seven years consulting in over 1600 aquatic accident cases on behalf of both plaintiffs and defendants.83 This wealth of experience in the precise subject matter of this action, along with the authoritative resources listed in Appendix B to the report,84 properly 83 Record at 629-30. 84 Id. at 643. 34 and thoroughly informed Mr. Ebro’s conclusions. Under well-established precedent, Plaintiff’s expert report was therefore sufficient to raise issues of fact in opposition to Chelsea Piers’ motion. Chelsea Piers does not dispute Mr. Ebro’s qualifications or experience. Nor does Chelsea Piers assert that his experience is an insufficient basis upon which to base his report. Nor does Chelsea Piers offer the testimony of an expert similarly qualified in the field of aquatic safety. Instead, Chelsea Piers simply sticks to its statutory compliance argument and attempts to bolster its misguided attack on the report by citing cases that, in fact, wholly support Plaintiff’s position. For instance, Chelsea Piers cites Adamy v. Ziriakus.85 This reliance is misplaced, as the Court in Adamy was tasked with assessing a trial verdict, not a summary judgment dispute.86 Thus, while the Court may have concluded that the expert report was insufficient to support the plaintiff’s verdict, it did not speak to whether the report raised factual issues at the summary judgment stage. Chelsea Piers also cites Buchholz v. Trump, which held that the plaintiff’s expert report was conclusory and thus insufficient to raise an issue of fact.87 However, Mr. Ebro’s report is easily distinguishable, as the expert in Buchholz relied “only” on two non-binding statutes and “provided no authority, treatise, standard, building code, article or other corroborating evidence,” nor “any basis” 85 Defendant’s Brief at 26. 86 Adamy v. Ziriakus, 92 N.Y.2d 396, 399 (Ct. App. 1998). 87 Buchholz v. Trump 767 Fifth Ave., LLC, 5 N.Y.3d 1, 9 (Ct. App. 2005). 35 whatsoever for his conclusions.88 Again, by contrast here Mr. Ebro relied on – and cited – his 40-plus years of experience in the field of aquatic safety, as well as the many sources listed in his report.89 Chelsea Piers’ reliance on Romano v. Stanley is likewise misplaced. Romano concerned the “Dram Shop Act,” which prohibits serving “visibly intoxicated” patrons alcohol.90 The plaintiffs submitted an “expert's affidavit asserting that in view of Stanley's blood alcohol level when she was served at Jack's and Martel's, she necessarily must have exhibited the symptoms of intoxication.”91 The Court found that the affidavit did not suffice to defeat summary judgment. However, the Court so held because, while “[i]n some situations, the nature of the subject matter or the expert's area of special skill will suffice to support the inference that the opinion is based on knowledge acquired through personal professional experience,” the plaintiffs’ expert specialized in “the performance of autopsies, [which] is not alone sufficient to lend credence to his opinions, since individuals in his field are not ordinarily called upon to make judgments about the manifestations of intoxication in live individuals.”92 This holding neatly distinguishes the present 88 Id. 89 For the same reason, Diaz v. New York Downtown Hosp., 99 N.Y.2d 542 (Ct. App. 2002), does not support Chelsea Piers’ position because, unlike Mr. Rebro, plaintiff’s expert in Diaz “made no reference either to her own personal knowledge acquired through professional experience or to evidence that any hospitals have implemented such a standard.” Id. at 545 (emphases added). 90 Romano v. Stanley, 90 N.Y.2d 444, 447 (Ct. App. 1997). 91 Id. at 451. 92 Id. at 452 (emphases added). 36 action, where “the nature of the subject matter” – namely, an aquatic accident – and “the expert's area of special skill” – namely, Mr. Ebro’s 40-plus years in the field of aquatic safety – more than suffice to “lend credence to his opinions,” especially considering the wealth of other sources also cited in the report. In addition to the decisions Chelsea Piers cites, numerous other decisions also demonstrate that that an expert’s experience is a decisive consideration at the summary judgment stage. In Efstathiou v. Cuzco, the Appellate Division reversed the trial court’s grant of summary judgment, finding that “[t]he [plaintiff’s] expert stated in his affidavit that he has been a glazier for 20 years, and is familiar with the laws, rules, regulations, and accepted customs and practices in the field of glass installation and replacement.”93 Applying the rule that an “expert's real-world knowledge and experience as a glazier is adequate to support an assumption that his opinion is reliable,” the Court concluded that fact issues remained.94 The Appellate Division reached the same result in Edwards v. St. Elizabeth Med. Ctr. In Edwards, the plaintiff had tripped on a trash can while on the defendant’s premises.95 While “assuming, arguendo, that defendant met its initial burden of establishing its entitlement to summary judgment,” the Court “conclude[d] that plaintiff raised triable issues of fact sufficient to defeat the 93 Efstathiou v. Cuzco, LLC, 51 A.D.3d 712, 714 (2d Dept. 2008). 94 Id. 95 Edwards v. St. Elizabeth Med. Ctr., 72 A.D.3d 1595, 1596 (4th Dept. 2010). 37 motion.”96 The Court thus reversed the grant of summary judgment, holding that the trial court erred in concluding that the plaintiff’s expert report “was without foundation, speculative and lacking probative value” since “Plaintiff's expert relied upon his review of the complete record, as well as his experience and training in biomechanics and human factors analysis.”97 Likewise, in Mitrovic v. Silverman, which arose out of a chiropractic injury,98 the First Department again considered the value of a plaintiff’s expert report. The Court unanimously affirmed the trial court’s denial of summary judgment, finding that the plaintiff’s expert raised “triable issues of fact as to whether defendants deviated from accepted practice.”99 The Court rejected the defendants’ argument that the report was speculative because it was not based upon “medical literature, studies, or professional group rules,” because, under well-established principles, an expert opinion “can be based upon personal knowledge acquired through professional experience.”100 Finally, in Greene v. Simmons, the First Department was again tasked with considering an expert report at the summary judgment stage. Greene concerned a 96 Id. 97 Id. 98 Mitrovic v. Silverman, 104 A.D.3d 430, 430 (1st Dept. 2013). 99 Id. 100 Id. (emphasis added). Note that the First Department cited Diaz, 99 N.Y.2d 542, in support of this rule – precisely the decision Chelsea Piers cites in an attempt to undermine Plaintiff’s expert report. 38 boiler malfunction that caused the death of an infant.101 The Court held that factual issues were raised on the record as to the building owner’s liability under the common law. Specifically, the Court found that “[o]n the material issue of industry custom and practice the expert's affidavit was sufficiently detailed and grounded in relevant experience.”102 This line of cases ably demonstrates the long-recognized rule that an expert’s affidavit, when based in professional experience in the relevant field, is sufficient to raise issues of fact in opposition to a motion for summary judgment. Chelsea Piers fails to acknowledge this rule, or to even dispute the adequacy of Mr. Ebro’s experience, and thus its arguments concerning the report are unavailing. Of course, Chelsea Piers will be free to probe Mr. Ebro’s credibility at trial, but it is not entitled to ignore the factual issues the report raises. 101 Greene v. Simmons, 13 A.D.3d 266, 266 (1st Dept. 2004). 102 Id. (emphasis added). 39 III. CHELSEA PIERS ERRS IN ARGUING THAT A PROXIMATE CAUSE ANALYSIS SUPPORTS SUMMARY JUDGMENT BECAUSE PROXIMATE CAUSE IN THIS MATTER IS A QUESTION OF FACT FOR JURY DETERMINATION It is well-established that “questions of proximate cause and foreseeability should generally be resolved by the factfinder.”103 “When faced with a motion for summary judgment on proximate cause grounds, a plaintiff need not prove proximate cause by a preponderance of the evidence, which is plaintiff's burden at trial. Instead, in order to withstand summary judgment, a plaintiff need only raise a triable issue of fact regarding whether defendant's conduct proximately caused plaintiff's injuries.”104 “That defendant could not anticipate the precise manner of the accident or the exact extent of injuries . . . does not preclude liability as a matter of law where the general risk and character of injuries are foreseeable.”105 Courts are generally averse to finding only one single cause of an injury at the summary judgment stage.106 While an intervening act may, “[i]n certain instances,” 103 Voss v. Netherlands Ins. Co., N.Y. Slip Op. 01259, at *6 (Ct. App. 2014) (reversing a grant of summary judgment because “the Appellate Division majority[’s] conclu[sion] that any negligence on CHI's part in failing to advise plaintiffs to procure more business interruption coverage was not the proximate cause of plaintiffs' losses” improperly usurped determination of this issue from the jury). See also Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315 (Ct. App. 1980) (“Given the unique nature of the inquiry in each case, it is for the finder of fact to determine legal cause, once the court has been satisfied that a prima facie case has been established.”). 104 Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 550 (Ct. App. 1998). 105 Derdiarian, 51 N.Y.2d at 316-17. 106 Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554, 560, 560 n2 (Ct. App. 1999) (finding that the stated question of whether the defendant’s instrumentality must be “the” proximate cause of the plaintiff’s injury for liability to flow was inapt, “[s]ince there may be more than one proximate cause of an injury.” (emphasis added)); Sweet v. Perkins, 196 N.Y. 40 sever liability, “[t]hose cases generally involve independent intervening acts which operate upon but do not flow from the original negligence.”107 Thus, “[a]n intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent.”108 A. Chelsea Piers Misstates the Proximate Cause Standard and Confuses its Relevance to this Action at the Summary Judgment Stage Chelsea Piers argues that a proximate cause analysis favors summary judgment.109 Specifically, Chelsea Piers argues that “Mr. Abraham’s actions in 482, 485 (Ct. App. 1909) (finding that “[t]he driving of the automobile and the presence of the pile of muck were two causes contributing to its occurrence, and both were, in their nature, proximate,” because “[t]here may be more than one proximate cause of an accident.”); Hagensen v. Ferro, Kuba, Mangano, Skylar, Gacovino & Lake, P.C., 108 A.D.3d 410, 411 (1st Dept. 2013) (ruling that “[t]he testimony by plaintiff alone raises triable issues” in a premises liability case, since “[t]here can be more than one proximate cause of an accident, and a plaintiff need not exclude every other possible cause apart from the landowner's alleged breach of its duty owing to the plaintiff.”); Radomski v. Consol. Gas Co. of New York, 90 Misc. 375, 378, 152 N.Y.S. 1050, 1052 (1st Dept. 1915) (finding that “the defendant owed the plaintiff the duty of reasonable care with respect to the condition of the ways, and there was a question for the jury” as to proximate cause, as “[t]here may be more than one proximate cause.” (internal quotation marks and citations omitted)); Spadaro v. Parking Sys. Plus, Inc., 113 A.D.3d 833, 833 (2d Dept. 2014) (denying summary judgment in a premises liability case because “[t]here can be more than one proximate cause of an accident” and thus “the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law”; and noting that “[t]he issue of comparative negligence is generally one for the trier of fact.” (internal citations and quotation marks omitted)); Kim v. Acosta, 72 A.D.3d 648, 648 (2d Dept. 2010) (finding that the defendant failed to establish its prima facie entitlement to summary judgment by arguing proximate cause issues because “[t]here can be more than one proximate cause of an accident.” (internal quotation marks omitted)). 107 Derdiarian, 51 N.Y.2d at 315. 108 Id. at 316 (emphasis added). 109 It should be noted that, although not explicitly stated by Chelsea Piers, the entire proximate cause analysis is a concession, for the purposes of argument, that Chelsea Piers was negligent, as 41 scaling a locked gate in the middle of the night while intoxicated was the sole proximate cause of the accident and no liability can attach to Defendant,” and that “Mr. Abraham’s actions must be considered the only cause of his injuries.”110 However, Chelsea Piers cannot adequately explain why the Supreme Court was required to deviate from fundamental rule that proximate cause is an issue for fact- finder determination. Chelsea Piers also ignores the long-standing rule that Courts are generally unwilling to decide, as a matter of law, that one actor’s conduct was the “sole” proximate cause of an injury.111 While Chelsea Piers is certainly correct in asserting that, in addition to negligence, “[a] plaintiff must also show that the defendant’s negligence was a ‘substantial cause’ of the accident,”112 it is nonetheless seeking to put the cart before the horse. Chelsea Piers is confusing the existence of fact questions with Plaintiff’s burden at trial. The sufficiency of a plaintiff’s evidence is not at issue in a summary judgment motion; the Court’s only task is determining whether fact issues exist.113 Thus, while Chelsea Piers cannot be held liable absent a showing of substantial cause, this will be Plaintiff’s burden to prove at trial, not on summary proximate cause only becomes relevant once a prima facie case is established. See Derdiarian, 51 N.Y.2d at 315. 110 Defendant’s Brief at 32, 33 (capitalization altered). 111 Additionally, Chelsea Piers did not assert the irregular “sole proximate cause” argument below, which further undermines its contention that the Supreme Court erred in denying it summary judgment. 112 Defendant’s Brief at 32. 113 Dollas v W.R. Grace & Co., 225 A.D.2d at 321 (“The function of a court entertaining a motion for summary judgment is one of issue finding, not issue determination.”). 42 judgment. Essentially, Chelsea Piers conflates the concept of comparative fault with the element of proximate cause: while Mr. Abraham’s conduct in bringing about the accident will certainly be relevant at trial on this issue of his share of the fault, it is not dispositive at the summary judgment stage. Furthermore, Chelsea Piers fundamentally confuses two other important concepts: 1) substantial cause of the accident; and 2) substantial cause of the injury. Plaintiff does not contend that Chelsea Piers’ failure to provide adequate supervision and rescue equipment caused Mr. Abraham to fall into the water. However, Plaintiff does contend that Chelsea Piers’ negligence was a substantial cause of Mr. Abraham’s death, and Chelsea Piers has not offered any evidence to rebut this contention. Chelsea Piers’ error is apparent when considering an alternate sequence of events. If, for example, Mr. Abraham had fallen into the water prior to leaving the premises at closing time, the result would be the same. Regardless of Mr. Abraham’s fault in falling, Chelsea Piers could still be negligent in not supplying reasonable means to protect him once he fell. Taken one step removed, if Mr. Abraham had not attempted to reenter the premises but instead had been accidentally locked in at the end of the night, the result would still be the same: the deciding issue of fact would still be whether Chelsea Piers maintained its premises in a reasonably safe condition given the undeniable foreseeability of aquatic 43 accidents, and, if it did not, whether that failure contributed to Mr. Abraham’s death. Chelsea Piers’ focus on Mr. Abraham’s conduct, couched in proximate cause language, is thus nothing more than a red herring. Nonetheless, Chelsea Piers gamely attempts to craft a viable proximate cause argument here. Chelsea Piers offers Derdiarian v. Felix Contracting Corp. as the foundation for this misguided argument, which is an odd choice, to say the least. In Derdiarian, a driver “suffered an epileptic seizure and lost consciousness, allowing his vehicle to careen into [a] work site and strike plaintiff with such force as to throw him into the air. When plaintiff landed, he was splattered over his face, head and body with 400 degree boiling hot liquid enamel from a kettle struck by the automobile.”114 The Court of Appeals ultimately concluded that summary judgment was inappropriate because “the jury could have found that Felix negligently failed to safeguard the excavation site [since] [a] prime hazard associated with such dereliction is the possibility that a driver will negligently enter the work site and cause injury to a worker.”115 The fact that “the driver was negligent, or even reckless, [did] not insulate [the defendant] from liability,” as “[t]he precise manner of the event need not be anticipated.”116 Derdiarian wholeheartedly supports the Supreme Court’s decision below. Chelsea Piers’ failure to properly equip its piers with safety equipment creates a 114 Derdiarian, 51 N.Y.2d at 313. 115 Id. at 316. 116 Id. See also Haseley, 84 A.D.3d at 483. 44 risk of the precise harm that Mr. Abraham here suffered: that someone will fall in the water and drown, unable to be saved. In other words, “the jury could [find] that [Chelsea Piers] negligently failed to safeguard the [premises]” by providing reasonable safety equipment, and that “a prime hazard associated with such dereliction is the possibility that” a person could drown. Mr. Abraham tragically drowned; “the foreseeable, normal and natural result of the risk”117 thus came to pass. Even accepting that Mr. Abraham was “negligent, or even reckless,” this does not “insulate [Chelsea Piers] from liability,” as the precise manner of the event causing injury need not be anticipated.118 Accordingly, under the principles articulated in Derdiarian, Chelsea Piers cannot credibly argue that the Supreme Court erred in finding that, as in nearly all negligence matters, “questions of proximate cause and foreseeability” in this action should “be resolved by the factfinder.”119 Chelsea Piers offers several other decisions to purportedly show that Mr. Abraham’s role in bringing about the accident requires summary judgment. 117 Derdiarian, 51 N.Y.2d at 316. 118 Moreover, the stranger-than-fiction circumstances of Derdiarian shows that proximate cause can exist even when the defendant’s negligence has only an attenuated connection to the sequence of events that caused the injury. It is far more conceivable that a person could fall off the piers and drown without life rings than it is that an epileptic driver could suffer a seizure, crash into the construction barrier, launching enamel into the air that then lands on the plaintiff. If nothing else, Derdiarian demonstrates that “[t]he concept of proximate cause, or more appropriately legal cause, has proven to be an elusive one, incapable of being precisely defined to cover all situations,” id. at 314 – all the more reason to leave it for case-by-case jury consideration. 119 Voss, N.Y. Slip Op. 01259 at *6. 45 However, none of these decisions require the reversal Chelsea Piers seeks. For instance, in Butler v. Marshall, the plaintiff decided to dive into the defendant’s pond without knowing its depth, despite his experience as a diver and his knowledge of the risks.120 By contrast, Mr. Abraham did not, knowing the risks, “decide” to fall into Chelsea Piers’ waters at all, and thus this is not a “diving accident”121 similar to the one in Marshall. Moreover, the Court in Marshall determined that the “defendant could not have reasonably foreseen the recreational use of this pond,”122 which is not the case here, as it was entirely foreseeable (and Chelsea Piers does not dispute this point) that patrons like Mr. Abraham would be present on the premises and could fall into the water. Similarly, in Rios v. Gristedes Delivery Serv. Inc., the plaintiff decided to climb into an elevated dumpster, resulting in his injuries.123 This, again, stands in contrast to Mr. Abraham’s conduct, as he did not purposefully dive into the water. Furthermore, the defendant in Rios was a general contractor, not a premises owner, and was thus subject to an entirely different standard of liability than Chelsea Piers is here.124 As such, the Court concluded that “plaintiffs failed to demonstrate that 120 Butler v. Marshall, 243 A.D.2d 971, 973 (1st Dept. 1997). 121 Id. at 972. 122 Id. 123 Rios v. Gristedes Delivery Serv. Inc., 69 A.D.3d 499, 500 (1st Dept. 2010). 124 Rios cites Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 142-43 (Ct. App. 2002), for the governing standard, which is that “[a] snow removal contractor (or one in a similar line of work) who ‘creates or exacerbates’ a harmful condition may generally be said to have ‘launched’ it.” This is entirely separate from the standard at issue here, which is that “a 46 any circumstances exist under which Premier Carting, a contractor, owed a duty of care to them.”125 Here, of course, Chelsea Piers does not dispute that it owed Mr. Abraham a duty. Accordingly, Rios is not at odds with the Supreme Court’s decision below. Chelsea Piers finally submits Maheshwari v. City of New York, in which the plaintiff was assaulted at a rock concert by intoxicated concert-goers and sued the venue owners.126 The Court held that the defendants were entitled to summary judgment because “the brutal attack was not a foreseeable result of any security breach.”127 The unpredictable nature of the assault in Maheshwari contrasts the present circumstances, as it is entirely foreseeable that someone could fall into a body of water at night and drown in the absence of available life-saving equipment. Furthermore, the Court in Maheshwari opined that the only measure that would have likely prevented the assault would have been “a security officer posted at the precise location where the incident took place.”128 Plaintiff doesn’t have the problem of such a hypothetical here, as Mr. Scanlon was present at the precise landowner owes a duty of care to maintain his or her property in a reasonably safe condition.” Gronski, 18 N.Y.3d at 379. 125 Rios, 69 A.D.3d at 500. 126 Maheshwari v. City of New York, 2 N.Y.3d 288, 291 (Ct. App. 2004). 127 Id. at 294. 128 Id. at 295. It is also worth noting that, even if Maheshwari does support Chelsea Piers’ position that increased security personnel were not needed, it does nothing to address Chelsea Piers’ lack of life rings or other safety equipment on the dock. 47 location where Mr. Abraham fell into the water and was willing, but unable, to help. Additionally, the Court determined that the assault was “caused by an independent, intervening criminal act” committed by a third person.129 This further distinguishes Maheshwari from the present action, as Chelsea Piers does not contend that a third party’s acts intervened and severed the causal link, only that Mr. Abraham’s own conduct severed the causal link. It is also worth noting that this latter contention is impossible, as Mr. Abraham’s conduct leading up to the fall could not possibly sever the causal link between Mr. Abraham’s death and Chelsea Piers’ negligence, since Chelsea Piers was negligent in failing to protect him after he fell. Maheshwari is therefore in full accord with the Supreme Court’s decision below. Chelsea Piers’ desperate insistence that Mr. Abraham’s conduct was the “sole proximate cause” of the accident is misguided and erroneous. Pursuant to well-founded rules governing summary judgment in negligence actions, particularly wrongful death cases, the Supreme Court correctly declined to rule on proximate cause as a matter of law, and its decision to deny summary judgment should be affirmed. 129 Id. 48 CONCLUSION For the foregoing reasons, Plaintiff Shiby Abraham, as administrator of the estate of Shibu Abraham, respectfully requests that this Court affirm the Supreme Court’s order denying Defendant Chelsea Piers’ motion for summary judgment, and grant such other and further relief that the Court deems just and proper. Dated: New York, New York March 19, 2014 By: _______________________________ PIERRE RATZKI, ESQ. WEITZ & LUXENBERG, P.C. 700 Broadway New York, New York 10003 (212) 558-5500 pratzki@gmail.com Attorneys for Plaintiff-Respondent Of Counsel: LAWRENCE B. GOLDHIRSCH, ESQ. WEITZ & LUXENBERG, P.C. 700 Broadway New York, New York 10003 (212) 558-5500 lgoldhirsch@weitzlux.com /s/ Pierre Ratzki 49 PRINTING SPECIFICATION STATEMENT I hereby certify pursuant to 22 NYCRR § 600.10 that the foregoing brief was prepared on a computer using Microsoft © Word 2010. A proportionally spaced typeface was used as follows: Name of typeface: Times New Roman Point size: 14 Line Spacing: Double The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, or this statement, is 12,985. Dated: New York, New York March 19, 2014 By: _______________________________ PIERRE RATZKI, ESQ. WEITZ & LUXENBERG, P.C. 700 Broadway New York, New York 10003 (212) 558-5500 pratzki@gmail.com Attorneys for Plaintiff-Respondent Of Counsel: LAWRENCE B. GOLDHIRSCH, ESQ. WEITZ & LUXENBERG, P.C. 700 Broadway New York, New York 10003 (212) 558-5500 lgoldhirsch@weitzlux.com /s/ Pierre Ratzki