Shiby Abraham,, Appellant,v.Chelsea Piers Management, Inc. Respondent.BriefN.Y.Sep 10, 2015 HERMAN KAUFMAN All correspondence to Attorney at Law Old Greenwich, CT ________ Member, New York Bar By Appointment P. O. Box 352 411 Theodore Fremd Avenue Old Greenwich, CT Suite # 206 South 06870 Rye, New York 10580 www.appellatelawoffice.com Email: email@example.com 914-925-3407, cell: 203-537-7560 Fa x: 772-325-7670 May 8, 2015 Hon. Andrew Klein, Clerk Court of Appeals of New York 20 Eagle Street Albany, New York 12207-1095 Re: Abraham v. Chelsea Piers APL-2015-00062; Rule 500.11 submission Letter Brief Dear Mr. Klein: Appellant, Shiby Abraham, submits this letter brief, as required, pursuant to Court Rule 500.11, presenting arguments in support of the appeal to this Court from the decision of the Appellate Division, First Department. Jurisdiction Ms. Abraham appeals from a judgment/order of the Appellate Division, which reversed on the law, the decision of the Supreme Court, denying Respondent’s motion for summary judgment, and, further, dismissing the complaint. The appeal has been taken pursuant to C.P.L.R. 5602 (a) (1) (i), which vests this Court with jurisdiction to hear the appeal. This appeal is timely, the motion for leave in the Appellate Division, having been filed within the 30-day period following notice of entry. Preliminary Statement Appellant brought suit for the wrongful death of the decedent, who had drowned in the Hudson River, while walking along a narrow dock, owned and operated by 2 Chelsea Piers, and which abuts the River. The Pier was not equipped with either ladders or life saving equipment, which formed the heart of the litigation. Most of the facts are not in dispute. The decedent, a medical student, and other friends, also medical students, had attended a school bowling function at a bowling alley at Chelsea Piers, where alcoholic beverages were served. It was after midnight when the decedent and 4 other students headed out of the Pier, only to find the entrance gate locked. An employee of Chelsea Piers unlocked the gate, approximately 10 feet high, and the group left. The gate was then re-locked. Later, the decedent realized he had forgotten his jacket at the bowling alley and, returned to the Pier for it. He is believed to have entered by climbing over a 4-foot fence giving entry to a narrow walkway running along the edge of the pier next to the river. No one saw him fall in but a New York State Corrections officer, who worked across the street, heard a splash. This witness was seated on a bench not far from the entrance to the piers where he often took breaks from his job across the street. The security guards would allow him to enter and sit on the pier even though the piers were officially closed. The witness saw a man in the river flailing his arms in the water and grunting. He looked around for a life ring but saw none (R 647). He then called 911 for help, but by the time assistance arrived it was too late. Issues and Arguments Presented on Appeal There are three main issues and arguments presented on appeal, all of which have been preserved for this Court’s review: A. Initially, there is a question involving the legal sufficiency of the Appellate Division “finding” that the decedent’s death was not foreseeable, because he drowned in the Hudson River “after trespassing onto one of the piers by scaling a locked gate while intoxicated.” Appellate Division Decision and Order, p. 1. There is absolutely no evidentiary or record support for this statement. The “finding” above can be traced to the Respondent’s submissions in its main brief below. On Page 7 of their brief they cite testimony of a security guard, Mr. 3 Manoly, who testified that two of the decedent’s friends “climbed over” to regain access after they had left. But in their argument Respondent claims that it was the decedent who “climbed over the ten foot gate.” This was a misrepresentation of the Record because it was not the decedent who climbed over, but rather his friends. Thus, there was no such testimony in the entire Record about the decedent ever climbing over a 10-foot gate and the Appellate Division mistakenly adopted the appellants’ brief as the truth of what took place. Manoly’s testimony, consisting of hearsay, was referring to the friends’ return, and not the decedent’s return. Also, it was a misstatement in the Respondents Brief (Pp. 7, 31-2), that the decedent, “climbed over the locked gate,” when he re- entered not only because the deposition testimony was referring to the friends, but because no one said that anyone climbed over a ten foot gate; they merely said they “climbed over” and that could have referred to the 4-foot fence that ran along the pier. Thus, the Respondent not only alleged it was the decedent who climbed, when it was the decedent’s friends, but also that it was the 10-foot gate when the friends only stated that they “climbed over.” Thus the underpinning of the Appellate Division ruling was flawed, and it was the aforementioned “finding” that probably led to the ruling that decedent’s death had not been reasonably foreseeable. Notwithstanding the ruling by the Appellate Division, the photos of the Pier make it clear that the decedent re-entered the Pier by climbing the 4-foot fence, and onto the dock, abutting the River, and which permits easy 24-hour access to the Pier. It is reasonable to conclude that the decedent entered the Pier through the walkway and onto the narrow dock into the water. Indeed, assuming, merely for the sake of argument, that the decedent had re-entered the Pier by “scal[ing] the locked gate,” this would have put him away from and not close to the narrow walkway abutting the water. The relevant photos (Record on appeal 197-224) reveal that the locked gate (shown open in the photo at R-198) leads to a wide concrete walkway nowhere near the water. Thus, the locked gate presented absolutely no hazard of falling into the Hudson River. Climbing over and then falling from the locked gate would land the decedent on the pavement away from the River and near the benches, where people sit and which are pictured in the photographs at R-200, 201 4 and 209.) The Corrections officer was sitting on one of those benches when he heard the decedent fall into the river. (It is important to note that neither the gangplank leading to a floating dock on the river nor the floating dock, shown in the photos at R-200, 201, 202, 203 and 205, were not present at the time of the accident. Further, the 10-foot high locked gate in no way kept patrons from entering the premises. This is evident from the easy access presented by the walkway through which the decedent had most likely entered. The 10 foot locked gate merely served notice that the Pier had closed. It did not prevent entry into the Pier as anyone who wanted to get in merely had to go through or over the 4-foot fence running along the side of the pier. Given that the access to the Pier during closing hours was easily accomplished by scaling the 4 foot fence to get onto the walkway, the defendant could have anticipated decedent’s re-entry into the Pier, which a jury could have also reasonably concluded required certain safety measures, including life rings and emergency ladders, which were nowhere present, and whose absence was criticized by Appellant’s expert. He testified that even though there were no federal, state or local regulations requiring the placement of life rings or ladders to protect the public (in contrast to OSHA regulations which were in place for the protection of pier workers) nevertheless it was the custom and practice of pier owners and operators to have such safety devices and ladders present. Were these implements available, the chance of a rescue was likely, as opined by the Corrections officer, who witnessed the drowning and who was unable to find a life buoy to throw to the decedent (Record on appeal 602, 648). (“If I saw something I would have thrown it towards the person in hopes of saving him or jumped in the water.”) Beyond this, labeling the decedent as a “trespasser” does not resolve the question of liability. As the Court has held, it is always a question for the jury whether the “trespasser’s” presence was reasonably foreseeable [Basso v. Miller, 40 N.Y.2 nd 233 (1976)]. The relevant principle is that a landowner such as Chelsea Piers must keep its property in a reasonably safe condition, a duty that is owed to all persons 5 using the property, regardless of that person’s status (invitee, licensee, or trespasser). B. A second issue involves the Appellate Division’s ruling on the summary judgment motion filed by Respondent—that is, whether, solely upon consideration of the Respondent’s motion papers alone, summary judgment should have been denied. The motion consisted merely of counsel’s affidavit in which the attorney offered essentially a jury-type summation as to why there were no issues of fact for the jury. He argued that there were no OSHA or other regulations requiring safety devices that were missing from the Pier; that the Respondent was otherwise in compliance with industry custom and practices; and, finally, that the affidavit and exhibits submitted by Appellant’s expert was simply speculating on the Respondent’s role in the manner and cause of decedent’s death. Respondent further failed to counter Appellant’s expert with an expert submission of its own (Record on appeal 10-29). Only counsel for defendant submitted an affidavit. The Court has long held that the remedy of summary judgment is available only in that case where the movant’s papers eliminate all material issues of fact [Wragge v. Lizza, 17 N.Y.2d 313 (1966); Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 505 (2012)]. That there may be competing inferences to draw from the facts does not require granting summary judgment. The purpose of summary judgment review is issue spotting, not factual findings [Kriz Schum, 75 N.Y.2d 25 (1989)]. Further, in a frequently cited case [Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986)], it is settled that a motion for summary judgment may be denied solely upon the inadequacy of the movant’s papers, without regard to whether the non-movant’s response is sufficient to create an issue of fact [ See Lesocovich v. 180 Madison, 81 N.Y.2d 982 (1983)]. As the Alvarez decision makes clear: “The proponent of a summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such a showing requires a denial of the motion, regardless of the sufficiency of the opposing papers [Citations 6 Omitted]. Measured by this standard, movant’s submissions cannot survive the test of summary judgment. As noted, the sole basis for summary judgment was an attorney affidavit in which counsel simply presented his own theory that ruled out liability. This hardly satisfied the duty of establishing the absence of any material issues of fact. In support of the motion, counsel argued that there were no code or statutory violations that could be the basis for relief; however, even if counsel had submitted an expert’s affidavit saying the same thing, this circumstance is not dispositive on summary judgment and does not preclude a verdict of liability [Kellman v. 45 Tiemann Assocs, 87 N.Y.2d 871 (1995); Powers v. 31 E 31 LLC, 24 N.Y. 3d 84 (2014)] Plaintiff’s expert stated that defendant violated industry custom and practice for safety on piers (R-632-634). He also gave the bases of his opinions, some of which were non-regulatory rules requiring ladder access as well as Coast Guard approved life rings attached to 90’ of line. (R-633-634). Merely because there is no cause of action based on a violation of statutory requirements, does not mean there cannot be liability under a common law theory. Powers v. 31 E. 31 LLC, supra. Respondent further attacked that portion of the report of Appellant’s expert, which mentioned OSHA standards, contending that such regulations were inapplicable to the Pier. Nonetheless, it is always permissible for an expert to consider inapplicable regulations in forming his opinion that the premises are unsafe. It was thus reasonable for the expert to consider OSHA and other inapplicable regulations in developing his analysis about the unsafe condition of the Pier. Compliance with a statutory or regulatory enactment does not preclude a finding that a defendant violated a common law duty. [Kellman v. 45 Tiemann Assocs. supra]. The attorney never took issue with the Appellant’s expert’s qualifications but rather argued that the expert’s conclusions about the cause of death were speculative because no one could say for sure if the presence of ladders or life rings would have saved the decedent. While that may be correct, the burden on this motion was for the defendant to prove that had there been safety devices, the death 7 would still have occurred. This defendant failed to do as it submitted no expert affidavit on the cause of death. In any event, the plaintiff’s expert’s report was anything but speculative. The expert possessed 40 years’ experience as a specialist in water/aquatic safety. He reviewed the entire file in this case, including depositions, police reports, witness statements, plus other documents, and further conducted an examination of the scene, all of which were documented in his report. His experience, unassailable expertise, and the depth and detailed analysis and accident reconstruction (R-637) in his report were clearly adequate to rebut summary judgment. In his final analysis, the expert concluded that the absence of emergency ladders and life buoys rendered the premises unsafe and he opined that “…Shibu Abraham would still be alive today had the life ring been properly in place together with an emergency ladder mounted on a nearby piling (Record on appeal, 639). Beyond this, the failure of Respondent’s counsel to counter the Appellant’s expert with a report from its own expert was clearly fatal to summary judgment, a point movant’s expert tenders submissions that raise factual issues, movant must respond with its own expert analysis [Rodriguez v. Woods, 121 A.D.3d 474 (1 st . Dept. 2014)]. In sum, the combination of Respondent’s defective submissions, coupled with the analysis of Appellant’s expert, raised issues of fact that should be left to a jury. C. The final, and most compelling issue on this appeal is the correctness of the Appellate Division’s determination that the drowning was not a reasonably foreseeable event, chargeable to Respondent. The claim is without merit. Initially, when the decedent is unavailable to explain how the injuries occurred, the resulting burden to establish the components of an action have been considerably relaxed [Noseworthy v. New York, 298 N.Y. 76 (1948)]. As to the issue of foreseeability, this Court has allowed juries broad flexibility in resolving the foreseeability issue, and, as shown below, it is only in 8 the rarest case that the Court will take this issue from the jury. [Rivera v. New York City Transit Authority, 77 N.Y.2d 322 (1991)]. 1 Indeed, there are a number of factual scenarios involving stranger circumstances far more unusual than the facts of the present case; in these situations, this Court left it to the jury to decide whether the occurrence was foreseeable. For instance, in McDonald v. Central School Dist., 179 Misc. 333 (Sup. Ct. Seneca County 1941), aff’d, 264 A.D. 943 (4 th Dept. 1942), aff’d, 289 N.Y. 300 (1943), a school district was held liable for an injury to a school child, when an oncoming vehicle ignored a school bus stop sign when children were exiting the bus—it was determined that the jury could well find that it was foreseeable that a vehicle would disobey the law that drivers must stop when children are exiting a school bus. In short, it was foreseeable that school officials should reasonably anticipate the possible intervention of a crime. See also Ward v. Clark, 232 N.Y. 95 (1921)(Cardozo, C.J.), where it was held that whether a pedestrian was guilty of contributory negligence when using poor judgment in crossing the street, despite plaintiff’s awareness that an oncoming vehicle had accelerated, was properly left to the jury. Clearly, measured by these authorities, a jury could well conclude that Appellant’s failure to have life rings and emergency ladders available constituted a deviation from the reasonable man standard and thus constituted negligence. At bar, although the decedent was swimming away from the pier when he drowned, the existence of a ladder could well have changed his path toward the pier or a life ring thrown past the decedent could have been pulled into his reach or the witness-Corrections officer might have jumped in, as he stated (R-648) if he had a life buoy. These factors could well have led a jury to the same conclusion as the Respondent’s expert. Another important decision, casting possible doubt on the correctness of the Court’s decision is Butler v. Seitelman, 90 N.Y.2d 987 (1997) where although the plaintiff used poor judgment in taking out a rowboat without lifesaving equipment to inspect property, the resulting injuries were determined not to be unforeseeable. Whether the plaintiff was guilty of contributory negligence was thus a question for 1 Maheshwari v. City of New York, 2 N.Y.3d 388 (2004), cited by the Court, contains one important distinction from the present case: Defendants in that case were held to have taken reasonable measures to prevent the occurrence there involved [Id. at 395]. 9 the jury. Bad judgment by the Plaintiff does not, therefore, require dismissal of the Complaint. Nor would the allegedly poor judgment of the decedent in attempting to re-enter the Pier after drinking alcohol after the premises had closed for the evening. The lesson from this and other cases is that overly peculiarly intervening acts and oddities do not automatically remove the question of foreseeability from the jury. Powers v. 31 E 31 LLC, 24 N.Y.3d 84 (2014), a situation remarkably similar to the present case, reveals the extent to which this Court has advised the Bar that foreseeability is strictly within the province of the jury. There, the plaintiff, an apartment tenant in Defendant’s building, fell off a setback roof, which, under the terms of the lease, was off limits to all tenants. Despite Plaintiff having been in a clearly demarcated unauthorized area of the building when the injury occurred, this circumstance, the Court ruled, presented a question of fact that was properly left to the jury. See also Sanchez v. State, 99 N.Y.2d 247 (2002) (Foreseeability of inmate attacking another inmate properly left to the jury); Cuevas v. New York, 32 A.D.3d 372 (1 st . Dept. 2006) (Particular manner of negligence need not be proven); see also Kriz v. Schum, 75 N.Y.2d 25 (1989)(Held youth, who was injured in head first slide into above ground pool, not unforeseeable). Further, as was made clear by the Court in Schneider v. Kings Highway Hospital Center, Inc., 67 N.Y.2d 743 (1986), the issue of foreseeability is not removed from the jury because the particular manner of negligence was unanticipated. Hoover v. New Holland N. Am. Inc., 23 N.Y.3d 41 (2014), involved a modification by the lessee of a machine that rendered its use unsafe [removal of a safety shield by the lessee] and resulted in injuries to the operator; this did not relieve the manufacturer of liability—despite the modification by the lessee, which constituted both a deviation from the manufacturer’s instructions and a clear unexpected intervening act. This Court left the issue of foreseeability to the jury. See also Blandin v. Marathon Equip. Co. 9 A.D.3d 574 (3 rd . Dept. 2004) (Modification of a machine, rendering it unsafe does not break the chain of causation). See also Carlock v. Westchester Lighting Co., 268 N.Y. 345, 350 (1935) (Unexpected intervening act does not break the chain of causation). 10 Conclusion By reason of the foregoing, the judgment of the Appellate Division should be reversed and the matter remitted to Supreme Court for further proceedings in that forum Respectfully submitted, Herman Kaufman Weitz & Luxenberg, P.C. 411 Theodore Fremd Ave. (206S) 700 Broadway Rye, N.Y. 10580 N.Y. N.Y. 10003 (914)925-3407 (212) 558-5594 cell 203 964-1115 __________________________ By:_____________________ Lawrence Goldhirsch Herman Kaufman cc: Rivkin Radler, LLP Attention: Cheryl Korman, Esq.