United States District Court, S.D. New York
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,
W. SWEET U.S.D.J.
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
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.
facts as set forth below are drawn from the Plaintiff's
FAC. They are taken as true for purposes of the motion to
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.
The Applicable Standards
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).
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).
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)).
The Motion to Dismiss Defendants Cartier Enterprises and