Shiby Abraham,, Appellant,v.Chelsea Piers Management, Inc. Respondent.BriefN.Y.September 10, 2015RIVKIN RADLER!,-- ATTORNFYSATLAW CHERYL F. KORMAN PARTNER (516) 357-3573 chervl.korman(a,rivkin.com WWW.RIVKINRADLER.COm July 16, 2015 VIA FEDEX State of New York Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, NY 12207-6095 Attention: Andrew Klein, Clerk of the Court Re: Abraham v. Chelsea Piers Management, Inc. N.Y. County Index No.: 101134/2010 RR File No.: 001435-00003 Dear Mr. Klein: Enclosed please find an original and two copies of the letter brief submitted on behalf of respondent Chelsea Piers Management Inc. in accordance with 22 N.Y.C.R.R. §500.11(d). Both the Corporate Disclosure Statement and an affidavit of service are attached to the letter. Please note the letter and the attachments have been filed with the court electronically. Should the Court have any questions or require additional information, please contact me. Very truly yours, C Cheryl F. Korman cc: Herman Kaufman, Esq. Attorney for Plaintiff, SHIBY ABRAHAM 411 Theodore Fremd Avenue Suite #206 - South Rye, New York 10580 3224751v1 926 RXR Plaza 555 Madison Avenue 21 Main Street, Court Plaza South Uniondale, NY 11556-0926 New York, NY 10022-3338 West Wing, Suite 158 T 516.357.3000 F 516.357.3333 T 212.455.9555 F 212.687.9044 Hackensack, NJ 07601-7021 T 201.287.2460 F 201.489.0495 _1VK1 N RADLER WWW.RIVKINRADLER.00 v ATTORNEYS AT LAW CHERYL F. KORMAN PARTNER (516) 357-3573 cheryl.kormanerivkin.com July 16, 2015 VIA FEDEX State of New York Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, NY 12207-6095 Attention: Andrew Klein, Clerk of the Court Re: Abraham v. Chelsea Piers Management, Inc. N.Y. County Index No.: 101134/2010 RR File No.: 001435-00003 Dear Mr. Klein: In this action to recover damages for wrongful death, defendant-respondent Chelsea Piers Management, Inc. ("Chelsea Piers") submits this letter brief in opposition to the letter brief filed by Appellant, Shiby Abraham ("Plaintiff'), as administrator of the estate of Shibu Abraham ("Mr. Abraham"). See 22 NYCRR § 500.11(d). This appeal comes to the Court through a certified question from the Appellate Division, First Department. Plaintiff argues that the Appellate Division erroneously: (1) reversed an order of Supreme Court, New York County (Tingling, J.), denying Chelsea Piers' motion for summary judgment dismissing the complaint, (2) granted the motion for summary judgment, and (3) directed the Clerk to enter judgment accordingly. The Appellate Division correctly reversed the Supreme Court order and granted Chelsea Piers' motion for summary judgment dismissing the complaint. Plaintiffs case was premised on the theory that Chelsea Piers failed to properly maintain its premises in that it did not have life rings and ladders present, leaving decedent without a means to be rescued after he fell into the Hudson River while trying to climb a locked gate to re-enter the premises in the middle of the night while intoxicated. Additionally, it was argued that Chelsea Piers was negligent in failing to adequately supervise and perform surveillance at the Piers. 926 RXR Plaza 555 Madison Avenue 21 Main Street, Court Plaza South Uniondale, NY 11556-0926 New York, NY 10022-3338 West Wing, Suite 158 T 516.357.3000 F 516.357.3333 T 212.455.9555 F 212.687.9044 Hackensack, NJ 07601-7021 T 201.287.2460 F 201.489.0495 iirR1VK1 N RADLER ATTORNEYS AT LAW July 16, 2015 Page 2 Chelsea Piers established its entitlement to summary judgment by submitting prima facie evidence that the premises were reasonably safe and that plaintiffs attempt to predicate liability upon the absence of ring buoys, ladders and surveillance equipment was unavailing. Chelsea Piers complied with all applicable statutes and regulations and took reasonable measures to protect people from falling into the water, such as erecting fences and gates along the edge of the pier, installing surveillance equipment and strategically stationing security guards throughout the premises. In response, Plaintiff failed to raise a triable issue of fact; his expert's assertions were speculative and unsupported by any evidentiary foundation. Chelsea Piers further demonstrated that the absence of ladders, life rings or increased surveillance did not proximately cause this tragic death because no reasonable fact finder could infer from the circumstantial evidence that those safety precautions would have saved Mr. Abraham. Mr. Abraham's decision to scale a locked a gate in the middle of the night and swim sixty feet away from the pier while he was intoxicated exemplified a disregard of his own common sense concerning his safety and must be considered a superseding cause that absolves Chelsea Piers of any potential liability. FACTUAL AND PROCEDURAL BACKGROUND Shibu Abraham attended a bowling event at Chelsea Piers on the evening of March 31, 2009. After he and his friends left the premises at approximately 1:30 a.m., a security officer locked the gate behind them. Thereafter, Mr. Abraham attempted to re-enter the premises in order to retrieve a jacket he had left behind. Mr. Abraham tried to climb over and/or around a fence, fell into the Hudson River and drowned. An autopsy revealed that Mr. Abraham was intoxicated at the time of the accident (181). In fact, his blood alcohol level was .18%, more than twice the legal driving limit. Thomas Scanlon, a corrections officer, was present on the pier on the night in question. He heard a grunt and eventually observed Mr. Abraham in the water ten or fifteen yards from the pier. Mr. Scanlon observed that Mr. Abraham was Swimming away from the pier (610). Approximately sixty seconds later, Mr. Abraham went under and never reappeared (609-610). li(R1VKlN RADLER ATTORNEYS AT LAW July 16, 2015 Page 3 Plaintiff Shiby Abraham, as administrator of the estate of her brother, Shibu Abraham, commenced this action to recover damages for wrongful death (30-33). The complaint alleges that Chelsea Piers was negligent in failing to have lifesaving equipment available to permit Abraham's rescue and in failing to hire a reasonable number of competent security personnel (32). Additionally, it was alleged that the defendant acted with reckless disregard to statutes, codes, regulations and beyond all standards of common decency (33). The complaint failed to articulate what particular statutes, codes and/or regulations were allegedly violated. Chelsea Piers moved for summary judgment dismissing the complaint on the ground that there was no issue of fact relating to its alleged negligence (8-9). Chelsea Piers argued that there was no dangerous condition existing on the pier and that plaintiff could not demonstrate knowledge of a dangerous condition necessary to defeat Chelsea Piers' motion for summary judgment. Chelsea Piers submitted the following proof in support of its motion: (1) the pleadings and bill of particulars (30-52); (2) the police report (68-71); (3) the deposition testimony of Loudy Manoly, supervisor of guest services (72-103); (4) the deposition testimony of Josue Vega, overnight supervisor (104-176); (5) the autopsy report (177-181); (6) plaintiff's expert report of Thomas Ebro, with annexed photographs (182-273); (7) the New York City Zoning Resolutions applicable to waterfront property (274-351); (8) the affidavit of Michael Braito, Senior Vice President at Chelsea Piers Management (599-601); and (9) the deposition testimony of witness Thomas Scanlon (602-624). Plaintiff submitted the following proof in opposition to Chelsea Piers' motion for summary judgment: (1) the expert affidavit of Thomas Ebro; and (2) the affidavit of witness Thomas Scanlon. Plaintiff argued that Chelsea Piers failed to demonstrate that the Piers were safe or that the accident was solely caused by Mr. Abraham's actions (626). Additionally, plaintiff argued that its expert raised a triable issue of fact by opining that there was no life ring or ladder available by which the decedent could have either saved himself or permitted a bystander to save him (626). Plaintiff's expert relied upon inapplicable and thus irrelevant OSHA regulations that required ladders at least every 400 feet or within 200 feet of work areas and life rings with 90 feet of line attached at readily accessible points at each waterside work Ir RIVKIN RADLEW ATTORNEYS AT LAW July 16, 2015 Page 4 area where an employee's work exposes him to drowning. Plaintiffs expert also relied on regulations promulgated by the City of New York relating to beaches. Plaintiffs expert also cited his 40-plus years of professional and personal experience in aquatics wherein he allegedly observed countless emergency ladder installations, including ring buoy stations, at public waterfronts (633). The Supreme Court, New York County (Tingling, J.), denied Chelsea Piers' motion for summary judgment. Without articulating the issues of fact and despite its finding that there was essentially no dispute as to how the accident occurred, the Supreme Court determined that there were issues of fact in dispute concerning plaintiffs common law negligence claims. Chelsea Piers appealed to the Appellate Division, First Department, which reversed the denial of Chelsea Piers' motion for summary judgment. The Appellate Division determined that the decedent's actions were not foreseeable and that there was no basis for holding Chelsea Piers liable fbr his demise. This order should be affirmed. LEGAL ANALYSIS Chelsea Piers Demonstrated That It Maintained Its Property In A Reasonably Safe Condition A landowner has a duty to maintain his property in a reasonably safe condition under the circumstances. See Preston v. State of New York, 59 N.Y.2d 997 (1983); Basso v. Miller, 40 N.Y.2d 233 (1976). When an injury results "not from any unsafe condition defendant left uncorrected on his [or her] land, but as a direct result of the course plaintiff .. decided to pursue[,]" however, "the law imposed no duty on defendant as landowner to protect plaintiff from the unfortunate consequences of his [or her] own actions." Macey v. Truman, 70 N.Y.2d 918, 919 (1987) (the method the plaintiff used for cutting down trees on defendant's land caused the injury, not any defect or unsafe condition on the land itself ► ; see also Statmatatos v. Stamatatos, 95 A.D.3d 1297 (2d Dep't 2012) (injury resulted solely from the manner in which the plaintiff chose to perform certain work on the respondent's house). Although the question of whether the landowner had proper safety precautions is generally a question of fact, the Court _WK1 N RADLEW ATTORNEYS AT LAW July 16, 2015 Page 5 should determine that the property was reasonably safe as a matter of law under the appropriate circumstances. See, e.g., Macey, 70 N.Y.2d at 919; Barnaby v. Rice, 75 A.D.2d 179, 180-81 (3d Dep't 1980), aff d, 53 N.Y.2d 720 (1981). Here, Chelsea Piers submitted evidence that, on its face, established that the premises were reasonably safe and that plaintiffs death resulted not from any unsafe condition on the land but as a direct result of the course plaintiff decided to pursue in attempting to regain entry onto the Piers. Chelsea Piers demonstrated that the premises were reasonably safe and satisfied all applicable regulatory provisions. Specifically, through the affidavit of Michael Braito, Senior Vice President employed by Chelsea Piers Management, Chelsea Piers established that Chelsea Piers, being a "waterfront" property, is subject to The City of New York Zoning Resolution Article VI: Special Regulations Applicable to Certain Areas, Chapter 2 — Special Regulations Applying in the Waterfront Area. This Zoning Resolution does not require or obligate a waterfront property owner to have life rings, emergency ladders or surveillance. As a result, Chelsea Piers was not in violation of any code, regulation or statute. To the contrary, Chelsea Piers had always complied with the regulations set forth in Chapter 2 and had never been presented with a complaint, ticket, summons or violation notice related to the purported deficiencies alleged by Mr. Ebro (600). Similarly, the height of the guardrails and gates, which plaintiff appears to take issue with for the first time in its submission to this Court, also complied with the applicable regulatory provisions (316, 507-509). The foregoing demonstrated that the premises were reasonably safe and satisfied all applicable regulatory provisions. In addition to the foregoing, Chelsea Piers established that it took reasonable precautions to protect individuals on their premises. In this respect, Josue Vega, the Fire Safety Director, testified that Chelsea Piers erected gates and railings for the express purpose of preventing people from falling into the river (128, 145). Additionally, the premises contained between five and ten security cameras, which the fire safety director monitored continually from the command center (123-124, 132). Moreover, the command center, which was approximately 15 seconds, from the piers, contained a life preserver with a rope and life TR, VK1 N RADLER': ATTORNEYS AT LAW July 16, 2015 Page 6 jackets (149-150, 152). In addition to the fire safety director and his assistant, Chelsea Piers stationed six to seven security guards, with radios to facilitate communication, throughout the premises (110, 136-137). Chelsea Piers also instituted safety precautions specifically designed to protect patrons who had consumed alcohol. Chelsea Piers knew that people sometimes exited the bowling alley in an intoxicated state (159) and stationed a security guard just outside the exit of the bowling alley (117-119). Chelsea Piers also communicated with the bowling alley to prepare for large groups leaving the premises after a party (117). Chelsea Piers' actions on the date of the accident confirmed that it took reasonable precautions to protect people at the piers. Two of Chelsea Piers' employees observed Mr. Abraham and his friends leaving the bowling alley (79, 159-160). Mr. Vega observed them on camera while he was in the command center, and Mr. Manoly saw them in person as they exited (79, 159-160). Mr. Manoly and another employee escorted them to an exit, directed them to a place where they could catch a cab and locked the gate behind them (80-82). Mr. Vega then instructed another security guard to "direct them to the front to catch a cab" (82). Once Mr. Manoly became aware that an individual had fallen into the water, he notified the other security guards by radio and rushed to the scene with a flashlight (86, 138). The fire safety director also rushed to the scene with a life preserver in hand (150-151). The precautions taken — which included erecting barriers to prevent patrons from an obvious danger, employing security guards to monitor the premises, equipping them with communications devices, strategically stationing security guards, installing cameras, and dedicating an employee to monitor the images captured by the cameras — demonstrated that the premises were reasonably safe. Contrary to plaintiff's conclusory allegation in its submission to this Court, Chelsea Piers submitted far more than counsel's affidavit in support of its motion for summary judgment and clearly met its burden of proof. In response, plaintiff failed to raise a triable issue of fact as to whether the premises were reasonably safe. Plaintiff, in effect, argued that the premises were not reasonably safe because Chelsea Piers violated customary industry practice by not having ladders and life rings stationed VK1 N RADLEW ATTORNEYS AT LAW July 16, 2015 Page 7 along the pier (633-634). Chelsea Piers demonstrated, however, that the regulatory provisions cited by plaintiff's expert were simply inapplicable to the present situation. For example, it was demonstrated that citation to OSHA regulations was improper where Mr. Abraham was not an "employee," and regulations germane to individuals working over or near water were inapplicable. Similarly, citation to regulations governing lifesaving equipment required for beaches was also inapplicable to any standards Chelsea Piers was required to follow. Chelsea Piers further demonstrated that plaintiff's expert's reference to his "personal experience" in seeing ladders and buoys at waterfront facilities and marinas, without more, was irrelevant. An expert's affidavit proffered as the sole evidence to defeat summary judgment must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation and would, if offered at trial, support a verdict in the proponent's favor. Adamy v. Ziriakus, 92 N.Y.2d 396 (1998). Where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation, the opinion should be given no probative force and is insufficient to withstand summary judgment. Diaz v. New York Downtown Hospital, 99 N.Y.2d 542 (2002); Romano v. Stanley, 90 N.Y.2d 444 (1991) (where the expert states his conclusion unencumbered by any trace of facts or data, the testimony should be given no probative force whatsoever). For example, in Buchholz v. Trump 767 Fifth Avenue, LLC, 5 N.Y.3d 1 (2005), this Court affirmed a grant of summary judgment dismissing the complaint of a plaintiff who had accidentally fallen through a 13 th floor window while roughhousing, where the plaintiff's expert had asserted that industry standards required installation of either tempered glass or a protective barrier bar, because plaintiff's expert cited no authority, treatise, standard, building code, article or other corroborating evidence to support his assertion that good and accepted engineering and building safety practices required these measures. Id. at 8-9. This Court held that plaintiff's expert's conclusory testimony was insufficient to raise a question of fact as to whether defendant breached its duty to maintain its property 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. Id. at 8. VK1 N RADLEW ATTORNEYS AT LAW July 16, 2015 Page 8 Thus, before a claimed industry standard is accepted by a court as applicable to the facts of a case, the expert must do more than merely assert a personal belief that the claimed industry- wide standard existed. Nor are mere non-mandatory guidelines and recommendations sufficient. Hotaling v. City of New York, 55 A.D.3d 396 (1st Dep't 2008), aff d, 12 N.Y.3d 862 (2009). The expert must offer concrete proof of the existence of the relied-upon standard as of the relevant time, such as a published industry or professional standard or evidence that such a practice had been generally accepted. 55 A.D.3d at 398. Plaintiff failed to do so. See Etheridge v. Marion A. Daniels & Sons, Inc., 96 A.D.3d 436, 437 (1st Dep't 2012) (defendant was awarded summary judgment where plaintiffs expert cited code provisions that were inapplicable to the ramp in question and "failed to support his opinion by nonconclusory reference to specific, currently applicable safety standards or practices"); Nathan v. Rochester Housing Authority, 68 A .1).3d 1820 (4th Dep't 2009) (opinion of a qualified expert that a plaintiffs injury was caused by a deviation from relevant industry standards has no probative force where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation). cf. Timarco v. Klein. 56 N.Y.2d 98, 102 (1982) (while defendant did not technically violate the current regulations regarding glass windows because the windows were installed before the regulations became effective, plaintiff still met his burden of proof because the record contained evidence that a sizeable portion of the industry was in compliance with the current regulations); Landry v. Gen. Motors Corp., Cent. Foundry Div., 210 A.D.2d 898, 898 (4th Dep't 1994) (OSHA violations could be considered as some evidence of negligence under the common law where the alleged negligence occurred on a work site). Here, Mr. Ebro expressly based his opinions upon Occupational Safety and Health Administration regulations (OSHA), which did not apply to Chelsea. Piers and was not probative of an industry standard. The OSHA regulations cited by Plaintiff set forth safety standards that employers must meet to protect their employees and contractors while working at a "marine terminal" (225). Naturally, safety standards designed to protect employees who may be assigned to work in dangerous conditions near water, will be significantly higher than the standards for water front premises, where owners are attempting to keep patrons away from the water. N RADLER: ATTORNEYS AT LAW July 16, 2015 Page 9 Therefore, OSHA regulations are not probative of an industry standard for water front property in general. Indeed, it would be unreasonable to hold a landowner to OSHA regulations. Similarly, New York City regulations that apply to beaches are not probative of industry standards for riparian property such as Chelsea Piers (634). New York City regulations that apply to beaches were crafted with the understanding that crowds of people would be swimming in the ocean. See 24 RCNY § 167.21. It would be unreasonable to hold the owner of water front property, who intends to keep people out of the water, to the same standards as New York City beaches, where people are invited and encouraged to swim in the water. Thus, violations of these inapplicable regulations were insufficient to establish a basis for Mr. Ebro's opinion regarding the industry standard. In sum, plaintiff failed to create a triable issue of fact with respect to his claim that Chelsea Piers was not reasonably safe. Mr. Ebro based his opinions regarding the industry standard upon inapplicable regulations and his own observations. Thus, his opinion is speculative and lacks the necessary reference to an authority, standard, building code, article or other corroborating evidence. See Diaz, 99 N.Y.2d 542; Hotaling, 55 A.D.3d at 396; Charles v. City of Yonkers, 103 A.D.3d 765 (2d Dep't 2013); Nathan, 68 A.D.3d 1820. In the absence of proof that a particular guideline or recommendation has been adopted in actual practice, it cannot be held to impose a heightened standard of care upon Chelsea Piers. See Charles, 103 A.D.3d at 765 (absent proof that a particular guideline or recommendation has been adopted in actual practice, it cannot be held to impose a heightened standard of care upon the defendants). Decedent's Actions In Scaling A Locked Gate In The Middle Of The Night While Intoxicated Was The Sole Proximate Cause Of The Accident Even assuming, for the sake of argument only, that the alleged absence of ladders and life preservers with 90-foot ropes stationed along the piers, and security cameras facing the water, constituted negligence on the part of Chelsea Piers, this alleged negligence could not conceivably be a substantial factor in bringing about Mr. Abraham's death. Even if these 1r RIVKIN RADLE ATTORNEYS AT LAW July 16, 2015 Page 10 additional safety precautions existed, Mr. Abraham would still have drowned. Thus, Chelsea Piers' negligence, if any, could not have been a proximate cause of Mr. Abraham's death. A defendant is negligent when he fails to exercise the degree of care which a reasonably prudent person would have exercised under the circumstances. See Dries v. Gregor, 72 A.D.2d 231 (4th Dep't 1980). To prove a prima facie case of negligence, the plaintiff must establish the existence of a duty, and that the breach was a proximate cause of an injury to the plaintiff. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339 (1928). The court may determine the issue of proximate cause as a matter of law where the evidence regarding the cause of an accident is undisputed or where the established facts lead to only one conclusion. Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308 (1980); Rivera v. City of New York, 11 N.Y.2d 856, rearg. denied, 11 N.Y.2d 1016 (1962). Proximate cause is based upon policy considerations which recognize the need "to place manageable limits upon the liability that flows from negligent conduct." Derdiarian, 51 N.Y.2d at 314; Ventricelli v. Kinney System Rent A Car. 45 N.Y.2d 950 remittitur amended, 46 N.Y.2d 770 (1978). Here, the only reasonable inference that can be drawn from the evidence is that Mr. Abraham would have died even if Chelsea Piers had provided the additional but unrequired safety measures plaintiff identifies. Life preservers, additional cameras and ladders would not have prevented Mr. Abraham's death by helping Mr. Scanlon, or anyone else, rescue Mr. Abraham. At the time of the incident, approximately 2 a.m., it was dark, and Mr. Scanlon did not see Mr. Abraham until he was between 45 and 60 feet from the pier. He only saw the back of Mr. Abraham's head for 60 seconds before Mr. Abraham went underwater (610-611). Moreover, Mr. Abraham was swimming away from Mr. Scanlon (610). It would be unreasonable to infer from these undisputed facts that if a life preserver were available, Mr. Scanlon could have located it and thrown it within Mr. Abraham's reach, all in the sixty seconds before Mr. Abraham went under water. It would be unreasonable to infer that Mr. Abraham, who was highly intoxicated, would have stopped swimming away from the pier and had the ability and presence of mind to grab hold of the life preserver so that Mr. Scanlon, or anyone else, could rescue him. Despite Mr. Scanlon's statement that he would have jumped in to save RADLEW., ATTORNEYS AT LAW July 16, 2015 Page 11 Mr. Abraham (648), it would also be unreasonable to infer that Mr. Scanlon would have been able to locate a life preserver, jump into the dark river, swim a minimum of 45 to 60 feet and save an intoxicated man who had fallen into the cold Hudson River - all in the sixty seconds before Mr. Abraham went underwater. There is simply no support for plaintiff's conclusory allegations that "the existence of a ladder well could have changed [Mr. Abraham's] path toward the pier" or that that "a life ring thrown past the decedent could have been pulled into [Mr. Abraham's] reach or the witness- Corrections officer might have jumped in." Kaufman Ltr. (5-8-15), at 8. Plaintiff's own expert indicated that "an unexpected fall from the elevated pier into cold nighttime water fully clothed would be instantly jarring and traumatizing" (637). Additionally, it must be remembered that decedent's blood alcohol level was .18 g%, which is more than twice the legal driving limit (181). See New York Vehicle and Traffic Law § 1192 (2). As to plaintiff's claim regarding increased security, even if Chelsea Piers posted a security officer at the precise location where the incident took place, it is highly speculative to infer that Mr. Abraham's death could reasonably have been prevented. As noted by this Court in Maheshwari v. City of New York, 2 N.Y.3d 288 (2004), this would surely be an unreasonable burden. Because this accident would have occurred regardless of whether ladders and a life preservers were installed along the pier, the negligence by Chelsea Piers, if any, could not have been "a substantial causative factor in the sequence of events that led to" Mr. Abraham's death. Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 520 (1980); see also Overton v. City of New York, 89 N.Y.2d 850 (1996) (even though it is uncontroverted that on the day decedent drowned in a pool owned and operated by defendant there were fewer life guards than required by the applicable codes, plaintiff failed to establish that the violation of these provisions was a proximate cause of her infant son's fatal accident). Alternatively, even assuming, for the sake of argument only, that Chelsea Piers' alleged negligent failure to have safety equipment available on the pier was a substantial factor in 1Ir K1VK1N RADLEW ATTORNEYS AT LAW July 16, 2015 Page 12 causing decedents death, the reckless conduct of the decedent was an unforeseeable superseding event that absolved Chelsea Piers of any potential liability. An intervening act does not necessarily absolve the defendant from liability; but when an intervening act severs the causal connection between the defendant's conduct and the plaintiff's injuries, it becomes a superseding event that absolves the defendant of liability. See Kriz v. Schum 75 N.Y.2d 25, 35 (1989); Derdiarian, 51 N.Y.2d at 315. An intervening act constitutes a superseding event when it is "extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct." Derdiarian, 51 N.Y.2d at 315. A plaintiff's own reckless, unforeseeable conduct can constitute a superseding event that severs the causal connection between the defendant's conduct and plaintiff's injuries. See Boltax v. Joy Day Camp, 67 N.Y.2d 617, 619-620 (1986). Whether an intervening act severs the causal connection between defendant's conduct and plaintiff's injuries is generally a question of fact; under certain circumstances, however, the court should decide the question as a matter of law. Deridarian, 52 N.Y.2d at 315; Kriz, 75 N.Y.2d at 35. This Court has held, for example, that "summary judgment [is] appropriate notwithstanding that a defendant's negligence might have been a causative factor in the accident where the reckless conduct of the plaintiff constituted an unforeseeable superseding event, sufficient to break the causal chain and thus absolve the defendant of liability." Kriz, 75 N.Y.2d at 35. Here, a Chelsea Piers' security guard escorted the decedent and his friends off the premises, directed them to a place where they could get a taxi and locked the gate behind them. Decedent unforeseeably returned to Chelsea Piers and attempted to re-enter the premises by climbing over a locked gate in the middle of the night, while highly intoxicated, and fell into the river, where he instantly became extremely disoriented and began swimming away from the pier and toward New Jersey. As a result of his actions, Mr. Scanlon only ever saw the back of Mr. Abraham's head and that was for a mere sixty seconds before decedent went under. Chelsea Piers could not have foreseen that after escorting him off the premises, decedent would act with Ir RIVKIN RADLER ATTORNEYS AT LAW July 16, 2015 Page 13 reckless disregard for his own safety by climbing over a locked gate in the middle of the night while he was intoxicated. This unforeseeable, reckless conduct was not the "natural or foreseeable consequence of Chelsea Piers' alleged failure to provide ladders, life rings or any other safety devices. Deridarian, 52 N.Y.2d at 315; see also Shutak v. Hanlder, 190 A.D.2d 345, 347 (1st Dep't 1993). Decedent's conduct was therefore independent of Chelsea Piers' alleged actions, and Chelsea Piers could not have protected him from the unfortunate consequences of his own actions. See Macey, 70 N.Y.2d at 919. Thus, decedent's conduct constituted a superseding event that severed the causal connection between defendant's alleged conduct and decedent's injury, absolving Chelsea Piers from any potential liability. This Court arrived at the same conclusion when applying these principles to similar facts. In Boltax, for example, the plaintiff sued the defendant, alleging that "defendant's...negligence — allowing trespassers to gain entry to the pool area and dangerously maintaining the pool by having it filled below capacity and by placing a lifeguard chair near the pool's shallow end — was a causative factor in plaintiffs injuries." 67 N.Y.2d at 619-620. The Court held that the reckless conduct of plaintiff, who "chose to dive head first from the lifeguard chair into shallow water, was an unforeseeable superseding event that absolves defendants of liability." Id. at 620; see also Olsen v. Town of Richfield, 81 N.Y.2d 1024, 1026 (2007) (holding that "the sole legal cause of plaintiffs injuries was his own reckless conduct in attempting" to dive into a creek). Here, Mr. Abraham climbed over or around a fence adjacent to the Hudson River in the middle of the night while intoxicated, making his actions just as unforeseeably reckless as diving "head first from [a] lifeguard chair into shallow water[.]" Boltox, 67 N.Y.2d at 620. Consonant with the general legal principles established by this Court and the application of those principles to similar facts, Mr. Abraham's conduct constituted a superseding event that severed the causal connection between defendant's alleged conduct and Mr. Abraham's injury, absolving Chelsea Piers from any potential liability. irRIVKIN RADLER ATTORNEYS AT LAW July 16, 2015 Page 14 Plaintiff's Remaining Contentions Are Without Merit The Gate that the Decedent Climbed is Irrelevant Plaintiff takes issue with the Appellate Division's statement that the "decedent drowned in the Hudson River, just off Chelsea Piers, after trespassing onto one of the piers by scaling a locked gate while intoxicated." Kaufman Ltr (5-18-15) at 2. According to plaintiff, this "finding" is erroneous because Mr. Abraham must have climbed over the four-foot gate, not the ten-foot gate, because climbing over the ten-foot gate "would have put him away from and not close to the narrow walk way abutting the water." Id. at 2-4. Thus, Plaintiff concludes, "anyone who wanted to [enter Chelsea Piers] merely had to go through or over the 4 foot fence running along the side of the pier." Id. at 4. As an initial matter, this argument is mere speculation because the record does not contain any evidence establishing exactly which gate Mr. Abraham scaled. Nevertheless, to the extent Plaintiff cavils about which gate the decedent climbed, this fact is legally irrelevant. The safety of the premises remains the same whether that Mr. Abraham climbed over or around the four-foot gate or the ten-foot gate. To the extent Plaintiff complains that the premises were not reasonably safe because the four-foot gate "permits easy 24-hour access to the Pier" to "anyone who wanted to get in[,]" this argument is raised for the first time in Plaintiffs letter submission to this Court and is therefore unpreserved. Id. at 3-4. In any event, this argument lacks merit. A review of the regulations applicable to waterfront property mandated that guardrails, defined, inter alia, as fencing or similar structures provided along the water edges of a pier or platform, shall have a maximum height of 42 inches measured from the adjoining grade level and shall be at least 70 percent open (316, 507). Ir RIVKIN RADLER ATTORNEYS AT LAW July 16, 2015 Page 15 Plaintiff Misapplies The Noseworthy Doctrine Citing Noseworthy v. City of New York, 298 N.Y. 76, 80 (1948), plaintiff argues that "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." Kaufman Ltr (5-8-15) at 7. The holding in Noseworthy is based upon the consideration that when "the management and control of the thing which has produced the injury is exclusively vested in the defendant, it is within his power to produce evidence of the actual cause that produced the accident, which the plaintiff is unable to present." Id. at 80-81. It is well established, however, that the Noseworthy doctrine is not applicable where the parties are on equal footing with respect to knowledge of the occurrence. Ulicki v. Jarka, 122 A.D.3d 1267 (4th Dep't 2014); Zalot v. Zieba, 81 A.D.3d 935 (2d Dep't), appeal denied, 17 N.Y.3d 703 (2011); Staples v. Sisson, 274 A.D.2d 779, 780 (3d Dep't 2000); Lynn v. Lynn, 216 A.D.2d 194, 195 (1 st Dep't 1995). Here, Chelsea Piers does not have any knowledge about how the incident occurred that is unavailable to plaintiff, and Chelsea Piers does not have "management and control of the thing which has produced the injury." Noseworthy, 298 NY at 80. Thus, the parties are on equal footing with respect to knowledge of the incident, and contrary to plaintiff's mischaracterization of the law, the Noseworthy doctrine does not apply. Plaintiff Mischaracterizes And Misapplies The Holdings Of Several Cases Plaintiff argues that the Court should have permitted the jury to determine liability because "[t]here are a number of factual scenarios involving stranger circumstances far more unusual than the facts of the present case." Kaufman Ltr at 8. In support of this erroneous contention, plaintiff cites Butler v. Seitelman, 90 N.Y.2d 987 (1997). In Butler, however, the plaintiff's bad judgment in taking out a rowboat without using a flotation device was foreseeable because the defendants advised plaintiff to use the rowboat without providing flotation devices, which was a violation of applicable laws. Here, Chelsea Piers did not advise Mr. Abraham to VK1 N RADLE ATTORNEYS AT LAW July 16, 2015 Page 16 scale a locked gate in the middle of the night while intoxicated or to swim away from the pier. Thus, plaintiff's reliance upon Butler is wholly misplaced. Also, as demonstrated above, there was compliance here with all applicable statutory and regulatory provisions. Plaintiff also relies on Powers v. 31 E 31 LLC, 24 N.Y.3d 84 (2014) and Rivera v. New York City Transit Authority, 77 N.Y.2d 322, reconsid. denied, 77 N.Y.2d 990 (1991) for the proposition that intervening acts and oddities do not automatically remove the question of foreseeability from the jury. In both Powers and Rivera however, this court expressly noted that multiple inferences could be drawn from the undisputed facts. See Powers, 24 N.Y.3d at 95 ("On this record, ...reasonable minds could differ as to whether plaintiffs use of the roof and his resulting fall were foreseeable, thereby precluding the grant of summary judgment to defendants on that ground"); Rivera, 77 N.Y.2d at 329 ("The question of foreseeability is usually for the jury to resolve, with proper and full instructions, when, as here, varying inferences may be drawn from the facts and evidence"). Here, in stark contrast, the only inference that can be drawn from the facts as alleged by plaintiff is that Mr. Abraham's highly unpredictable actions were the sole proximate cause of his death. Also misplaced is plaintiff's reliance on cases involving motor vehicle accidents whereby an infant plaintiff was hit while crossing the street (McDonald v. Central School District, 289 N.Y. 800 (1943) and where two vehicles collided at an intersection (Ward v. Clark, 232 N.Y. 195 (1921)). The inapplicability of these cases is self-evident. Also misplaced is plaintiff's reliance on Schneider v. Kings Highway Hospital Center, Inc., 67 N.Y.2d 743 (1986) for the proposition that "the issue of foreseeability is not removed from the jury because the particular manner of negligence was unanticipated." The issue in Schneider was whether the testimony at trial was sufficient to state a prima facie cause of action for negligence. 67 N.Y.2d at 745. The Court held that "plaintiff established her prima facie case by proof ... by evidence ... from which the jury could reasonably conclude that it was more likely that a hospital staff person had lowered the bed rails than that plaintiff's decedent ... had done so." Id. Thus, the primary point of contention in Schneider was whether defendant had breached its duty of care by lowering the bed rails, not whether plaintiff's injuries were foreseeable. Indeed, this Court did not mention 1 r 1UI RIVKIN RADLE ATTORNEYS AT LAW July 16, 2015 Page 17 foreseeability. Contrary to plaintiff's contention, Schneider does not stand for the proposition that "the issue of foreseeability is not removed from the jury because the particular manner of negligence was unanticipated." Accordingly, Schneider does not support plaintiff's position. Neither does Hoover v. New Holland N. Am. Inc., 23 N.Y.3d 41 (2014), which involved the issue of whether defendants were entitled to summary judgment dismissing plaintiff's design defect claims based on the substantial modification defense. There, the plaintiff was injured when she was caught and dragged into the rotating driveline of a tractor-driven post hole digger. Prior to the accident, the owner removed a plastic safety shield from the machine after years of use had left the shield damaged and beyond repair. The defendants argued that the shield was not defectively designed but was damaged when the owner misused the digger by allowing the shield to contact the ground during drilling. This Court held that plaintiff raised triable issues of fact concerning the defective design of the safety shield that were sufficient to defeat summary judgment based on substantial modification. In this respect, there was a question as to whether it was foreseeable that the shield would touch the ground during normal use and whether more robust durability testing would have revealed that a plastic shield would not hold up under these circumstances. Id. at 58. Clearly, this case has no applicability to the instant case. CONCLUSION The foregoing demonstrates that the order appealed from should be affirmed. If a rule of law were established so that liability would be imposed for an instance such as this, it is difficult to conceive of the bounds to which liability logically would flow. The liability potential would be all but limitless and the outside boundaries of that liability would be impossible to define. Imposing liability on Chelsea Piers under such circumstances would convert Chelsea Piers into an insurer of all those who enter its premises. Thus, based upon the inapplicability of the rules and regulations allegedly violated by Chelsea Piers, the limitless speculation by plaintiff that the death of Mr. Abraham could have somehow been averted, and the superseding, intervening and unforeseeable actions of Mr. Abraham, the Court must affirm the Appellate Division order. iirRiVK1N RADLEW ATTORNEYS AT LAW July 16, 2015 Page 18 Should the Court have any questions or require additional information, please contact me. Very truly yours, C— F. )s„---_,vv\c/c-L„ Cheryl F. Korman cc: Herman Kaufman, Esq. Attorney for Plaintiff, SHIBY ABRAHAM 411 Theodore Fremd Avenue Suite #206 - South Rye, New York 10580 3214092 v4 COURT OF APPEALS STATE OF NEW YORK X SHIBY ABRAHAM as administrator of the ESTATE OF SHIBU ABRAHAM, Plaintiff, -against- CHELSEA PIERS MANAGEMENT INC., Defendant. STATEMENT PURSUANT TO COURT OF APPEALS RULE 500.1(f) New York County Index No.: 101134/2010 X Defendant, CHELSEA PIERS MANAGEMENT INC., as and for their statement pursuant to 22 NYCRR § 500.1(f), hereby state as follows: The following are a list of affiliates of CHELSEA PIERS MANAGEMENT INC.; Chelsea Piers L.P.; North River Operating Company L.P.; Pier 62 Restaurant LLC; North River Property LLC; Riverfront Services I LLC; Silver Screen LLC; and Pier Sixty LLC. Dated: Uniondale, New York July 16, 2015 3225097 vl Sworn to before me this ay of July, 201 Notary Public AFFIDAVIT OF SERVICE STATE OF NEW YORK ) SS.: COUNTY OF NASSAU I, Sandra Echezuria, being sworn, say: I am not a party to the action, am over 18 years of age and reside in Nassau County, New York. On July 17, 2015, I served the within SSM Letter Brief, depositing a true copy thereof enclosed in a post-paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State, addressed to each of the following persons at the last known address set forth after each name: Herman Kaufman, Esq. Attorney for Plaintiff, SHIBY ABRAHAM 411 Theodore Fremd Avenue Suite #206 - South Rye, New York 10580 ,SaixiaLut Sandra Echezuria PATRICIA A. WILCOX Notary Public, State of New York No. 01W1-4758506 Qualified in Nassau County Commission Expires on December 31, 2018 3214092 v4