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Kalinkina v. Martino Cartier Enterprises, LLC

United States District Court, S.D. New York

June 20, 2017

MICHELLE KALINKINA, Plaintiff,
v.
MARTINO CARTIER ENTERPRISES, LLC, MARTINO CARTIER SALON WASHINGTON TWP LLC, MARTINO CARTIER, and BEARSHEART LLC, Defendants.

          Attorneys for Plaintiff BRUCE MONTAGUE & PARTNERS Craig I. Gardy, Esq.

          Attorney for Defendants LAW OFFICES OF TOBIAS & KUHN Gail Mota, Esq. WHITE FLEISCHNER & FINO LLP Wendy K. Cardali, Esq.

          OPINION

          ROBERT W. SWEET U.S.D.J.

         Defendants Martino Cartier ("Cartier"), Martino Cartier Enterprises, LLC ("Cartier Enterprises"), Martino Cartier Salon Washington TWP LLC ("Cartier Salon"), and Bersheart LLC ("Bersheart") (collectively, the "Defendants") have moved to dismiss the First Amended Complaint of plaintiff Michelle Kalinkina ("Kalinkina" or the "Plaintiff") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. As set forth below, the motion is granted in part and denied in part.

         I. Prior Proceedings

         Kalinkina instituted this action on October 26, 2016 and filed her First Amended Complaint ("FAC") on January 20, 2017, alleging negligence and gross negligence against the Defendants. The instant motion was filed on January 23, 2017, and the motion was marked fully submitted on March 16, 2017.

         II. The Facts

         The facts as set forth below are drawn from the Plaintiff's FAC. They are taken as true for purposes of the motion to dismiss.

         Plaintiff, a professional model, attended a public haircut and styling demonstration at the Jacob Javits Convention Center (the "Javits Center") on March 7, 2016. FAC ¶¶ 15-17. Cartier was cutting her hair, and he was doing so on behalf of himself individually as well as in the course and scope of his employment with Cartier Enterprises, Cartier Salon, and Bersheart. Id. ¶¶ 18-26. During the demonstration, Cartier cut Plaintiff's neck with scissors. Id. ¶ 28. As a result, Kalinkina sustained physical injury, pain, and scarring. Id. ¶ 28, 31.

         III. The Applicable Standards

         The Rule 12(b)(6) standard requires that a complaint plead sufficient facts to state a claim upon which relief can be granted. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). On a motion to dismiss under Fed. R. Civ. P 12(b)(6), all factual allegations in the complaint are accepted as true, and all reasonable inferences are drawn in the plaintiff's favor. Littlejohn v. City of N.Y., 795 F.3d 297, 306 (2d Cir. 2015); Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). However, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions." Twombly, 550 U.S. at 555 (quotation marks omitted). A complaint must contain "sufficient factual matter, accepted as true, to ''state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 663 (quoting Twombly, 550 U.S. at 570).

         A claim is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556). In other words, the factual allegations must "possess enough heft to show that the pleader is entitled to relief." Twombly, 550 U.S. at 557 (internal quotation marks omitted).

         Additionally, while "a plaintiff may plead facts alleged upon information and belief 'where the belief is based on factual information that makes the inference of culpability plausible, ' such allegations must be 'accompanied by a statement of the facts upon which the belief is founded.'" Munoz-Nagel v. Guess, Inc., No. 12-1312, 2013 WL 1809772, at *3 (S.D.N.Y. Apr. 30, 2013) (quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010)) and Prince v. Madison Square Garden, 427 F.Supp.2d 372, 384 (S.D.N.Y. 2006); see also Williams v. Calderoni, No. 11-3020, 2012 WL 691832, *7 (S.D.N.Y. Mar. 1, 2012). The pleadings, however, "must contain something more than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Twombly, 550 U.S. at 555 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).

         IV. The Motion to Dismiss Defendants Cartier Enterprises and ...


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