MICHAEL HEDGES as Guardian ad Litem of MARION HEDGES, an Incapacitated Person, MICHAEL HEDGES Individually, and DAYTON HEDGES, an Infant by His Father and Natural Guardian MICHAEL HEDGES, Plaintiffs
EAST RIVER PLAZA, LLC, TIAGO HOLDING, LLC, BLUMENFELD DEVELOPMENT GROUP, LTD., FOREST CITY ENTERPRISE, INC., FOREST CITY RATNER COMPANIES, INC., ERP MANAGEMENT LLC, PLANNED SECURITY SERVICE INC., TARGET CORPORATION, COSTCO WHOLESALE CORPORATION, and BOB'S DISCOUNT FURNITURE OF NY, LLC, Defendants Index No. 101854/2012
For Plaintiffs Carmine A. Rubino Esq. Kramer, Dillof, Livingston & Moore
For Defendant Planned Security Service Inc. Stephen B. Kahn Esq. Pillinger Miller Tarallo, LLP
For Defendant Costco Wholesale Corporation Richard J. Calabrese Esq. Gallagher, Walker, Bianco & Plastaras, LLP
For Defendant Bob's Discount Furniture of NY, LLC Howard J. Snyder Esq. and J. Jay Young Esq. Smith Mazure Director Wilkins Young & Yagerman, P.C.
DECISION AND ORDER
LUCY BILLINGS, J.S.C.
Plaintiff mother, Marion Hedges, her son Dayton Hedges who accompanied her, and her husband Michael Hedges, suing derivatively and as her guardian ad litem, seek damages for her life changing injuries when two minor customers of the East River Plaza shopping center in New York County threw a shopping cart from the fourth level of the center onto her at the ground level. Plaintiffs sue the shopping center's owners, management, and tenant stores that plaintiffs claim were responsible for security in the area of the injury, for controlling the rowdy customers who became the assailants, and for controlling the stray shopping carts from which those customers selected their instrumentality.
I. THE MOTION TO DISMISS CLAIMS AGAINST BOB'S DISCOUNT FURNITURE
Defendant Bob's Discount Furniture of NY, LLC, one of several large retail stores in the shopping center, moves to dismiss the complaint and cross-claims against this defendant based on documentary evidence, C.P.L.R. § 3211(a)(1), and failure to state a claim. C.P.L.R. § 3211(a)(7). Bob's Discount Furniture rented part of center's fourth level, from which an elevated pedestrian bridge crossed to the parking garage attached to the center. Bob's Discount Furniture claims that, under its lease with the East River Plaza owner, co-defendant Tiago Holding, LLC, this elevated walkway, from which two boys threw the shopping cart, was a common area of the complex for which the tenant bore no maintenance or security responsibilities, including a duty to remove any stray shopping carts.
Insofar as Bob's Discount Furniture relies on its lease, however, no witness attests to the signatures on the lease or to circumstantial authentication. IRB-Brasil Ressecruros S.A. v. Portobello Intl. Ltd., 84 A.D.3d 637 (1st Dep't 2011); Babikian v. Nikki Midtown, LLC, 60 A.D.3d 470, 471 (1st Dep't 2009); Bank of New York v. Dell-Webster, 23 Misc.3d 1107 (Sup. Ct. Bronx Co. 2008). See Singer Asset Fin. Co., LLC v. Melvin, 33 A.D.3d 355, 357-58 (1st Dep't 2006); Acevedo v. Audubon Mqt., 280 A.D.2d 91, 95 (1st Dep't 2001); Fields v. S & W Realty Assoc., 301 A.D.2d 625 (2d Dep't 2003). Therefore the lease is not admissible documentary evidence that the court may consider to support a motion to dismiss claims pursuant to C.P.L.R. § 3211(a)(1). Greenapple v. Capital One, N.A., 92 A.D.3d 548, 550 (1st Dep't 2 012); Advanced Global Tech., LLC v. Sirius Satellite Radio, Inc., 44 A.D.3d 317, 318 (1st Dep't 2007); 1911 Richmond Ave. Assoc, LLC v. G.L.G. Capital, LLC, 60 A.D.3d 1021, 1022 (2d Dep't 2009). See Muhlhahn v. Goldman, 93 A.D.3d 418, 419 (1st Dep't 2012).
To establish this tenant's nonliability, Bob's Discount Furniture relies not just on its lease, but also on non-documentary evidence outside the complaint's allegations, that this store did not own, possess, control, or use any shopping carts or allow them into the store, and the cart thrown onto Marion Hedges belonged to co-defendant Target Corporation. Target was another large retail store in the shopping center.
Part of this evidence is a Bob's Discount Furniture store security camera recording of the boys who dropped the shopping cart leaving this store without a shopping cart. According to Bob's Discount Furniture employee Joseph Klein, the video recording then shows the boys pushing a cart from the common area at a distance from the front of the store. Even if Klein authenticates the video recording, this evidence, along with the remainder of his affidavit and the affidavit of the store manager concerning the absence of responsibility for shopping carts or maintenance, may not be considered to support a motion to dismiss claims pursuant to C.P.L.R. § 3211(a)(1) and (7). Lawrence v. Graubard Miller, 11 N.Y.3d 588, 595 (2008); Solomons v. Douglas Elliman LLC, 94 A.D.3d 468, 469 (1st Dep't 2012); Tsimerman v. Janoff, 40 A.D.3d 242 (1st Dep't 2007). See Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002); 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 152 (2002); Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994); Correa v. Orient-Express Hotels, Inc., 84 A.D.3d 651 (1st Dep't 2011).
II. THE CLAIMS AGAINST BOB'S ...