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Berger v. Rokeach

Supreme Court, Kings County

November 20, 2017

Shmuel Berger, Plaintiff,
v.
Shem Rokeach, CLARK C. MCNEIL, BREADBERRY INC., BREADBERRY USA LLC, MEAT AT BREADBERRY INC., ROYAL PARKING SERVICES, INC., AND MEG SERVICES INC. [1], Defendants. SHEM ROKEACH, Third-Party Plaintiff,
v.
MEG SERVICES INC. AND ROYAL PARKING SERVICES, INC., Third-Party Defendants.

          Plaintiff is represented by Jaroslawicz & Jaros PLLC

          Defendant business is represented by Garry Pogil, Esq.

          HON. DEBRA SILBER, J.S.C.

         The following papers numbered 1 to 11 read herein:

Papers Numbered
Notice of Motion/Order to Show Cause/Affidavits (Affirmations) and Exhibits Annexed 1-7
Opposing Affidavits (Affirmations) and Exhibits Annexed 8-11
Reply Affidavits (Affirmations)

         Upon the foregoing papers in this personal injury action, defendant Breadberry Inc. (Breadberry Inc.) moves for leave to renew this court's denial of its motion for summary judgment (Motion Seq. # 10) and upon renewal, asks for an order, pursuant to CPLR 3212, granting it summary judgment "as to all claims and issues in favor of Breadberry, Inc." The court assumes counsel means summary judgment dismissing plaintiff's amended complaint and all cross claims as against Breadberry Inc. and will proceed accordingly.

         Breadberry Inc.'s prior summary judgment motion, for an order dismissing Berger's original complaint, was denied by Decision and Order dated June 1, 2017, as Berger's amended complaint superceded his original complaint, which became a nullity. The court's denial was without prejudice to Breadberry Inc. filing a renewed summary judgment motion addressed to Berger's amended complaint after Breadberry Inc. served an answer to Berger's amended complaint. (Berger v Rokeach, 2017 NY Misc. LEXIS 2168, 2017 NY Slip Op 31192(U) [Sup Ct Kings Cty]).

         Upon renewal, Breadberry Inc.'s motion for summary judgment is denied for the reasons stated herein.

         Background

         The Accident

         On February 17, 2015, Berger, a pedestrian, sustained personal injuries when he was struck by a vehicle owned by defendant Rokeach and operated by defendant Clark C. McNeil (McNeil), a valet parking attendant who was providing valet parking for customers of "Breadberry, " a supermarket at 1689 60th Street in Brooklyn (Breadberry Market). The accident occurred at the intersection of 12th Avenue and 62nd Street in Brooklyn when McNeil was returning Rokeach's vehicle to the Breadberry Market from the valet parking lot a few blocks away. At the time of the accident, Steven Pittsley (Pittsley), another valet parking attendant, was a passenger in the vehicle driven by McNeil.

         The Valet Parking Contracts

         1. The Valet Parking Contract

         Under a September 30, 2014 contract between Breadberry Inc. (Movant herein) and defendant Royal Parking (Valet Parking Contract), Royal Parking agreed to provide valet parking services at the Breadberry Market. The Valet Parking Contract provides, in relevant part, that:

" Royal Parking... is performing valet parking services at Breadberry [Market] located at 1689 60th Street, Brooklyn, NY 11204. Royal Parking... releases and discharges and will indemnify and hold Breadberry Inc. [harmless]... of and against any and all rights and claims for damages, losses and/or injuries arising out of the ordinary course of business. Royal Parking... takes all responsibility for any customer losses and lawsuits that may arise which relate to and/or involve our employees performing their valet duties. These losses include but are not limited to damages to customers' vehicles, bodily injury of customers due to the negligence of our employees, missing property and/or valuables out of customers' cars. This release includes claims against Breadberry Inc., subsidiaries, affiliates, predecessors, successors, and assignees, and it's or their respective officers, directors, employees or representatives. Royal Parking... will perform its services and maintain insurance coverage in the amount of Two Million Dollars ($2, 000, 000) liability and theft..." [2]

         2. The Valet Parking Subcontract

         Under a September 24, 2014 subcontract (an earlier date than the contract) between Royal Parking and defendant Meg (Valet Parking Subcontract), Royal Parking subcontracted with Meg to perform valet parking services at the Breadberry Market. The Valet Parking Subcontract provides in its entirety:

"Royal Parking Services Inc. subcontracts MEG Services Inc. to perform valet parking service at its contracted location Breadberry [Market] located at 1689 60th Street, Brooklyn, New York, 11204. Royal Parking Services Inc. will maintain insurance coverage throughout the contract period for any employees hired/managed by MEG Services Inc. at the contracted location Breadberry [Market]. Royal Parking Services Inc. releases and discharges and will indemnify and hold MEG Services Inc. of and against any and all rights and claims for damages, losses and/or injuries arising out of the ordinary course of business. Royal Parking Services Inc. takes all responsibilities for any customer losses and lawsuits that may arise which relate to and/or involve MEG Services Inc. employees performing their valet duties." [3]

         The Personal Injury Action

         On February 24, 2015, Berger commenced this personal injury action against Shem Rokeach, McNeil, Breadberry Inc., Breadberry USA and Meat At Breadberry Inc. (Meat) by e-filing a summons and a verified complaint, asserting a single cause of action sounding in negligence.

         Berger's original complaint alleged that defendants Breadberry Inc., Breadberry USA and Meat "jointly operate a gourmet food market located at 1689 60th Street..." and "McNeil provided valet services for the Breadberry defendants" (complaint at ¶¶ 7 and 8). The complaint further alleges that "[d]ue to the defendants' recklessness, carelessness and negligence, plaintiff was caused to suffer severe and permanent personal injuries when he was struck by the vehicle owned by defendant Rokeach, being operated by defendant McNeil in the scope of his employment for the Breadberry defendants" (id. at ¶ 12).

         On or about March 26, 2015, Rokeach answered Berger's complaint, denying the material allegations therein and asserting affirmative defenses and a cross claim for indemnification against McNeil.

         On or about April 21, 2015, McNeil answered Berger's complaint, denying the material allegations therein and asserting affirmative defenses and cross claims for indemnification against Rokeach, Breadberry Inc., Breadberry USA and Meat.

         On or about June 2, 2015, Breadberry USA answered Berger's complaint, denying the material allegations therein and asserting affirmative defenses and cross claims for indemnification against Rokeach, McNeil, Breadberry Inc. and Meat.

         Breadberry Inc. and Meat failed to answer or otherwise respond to Berger's complaint.

         On or about November 16, 2015, Rokeach (the vehicle owner) filed a third-party complaint which was amended on December 14, 2015, against Meg, Royal Parking, Breadberry Inc. and Meat, alleging that Meg and Royal Parking "offered and operated a valet parking service at the Breadberry Food Market..." (third-party complaint at ¶¶ 9 and 10). The third-party complaint alleges that McNeil "was acting as an agent, servant and/or employee of" Meg, Royal Parking, Meat and Breadberry Inc. (id. at ¶¶ 11, 12, 19 and 20). In addition, the third-party complaint alleges that Breadberry Inc. and Meat owned and operated the Breadberry Market and "offered, operated and provided valet parking service to its customers" (id. at ¶¶ 13-18). Rokeach seeks a declaratory judgment (1) that his liability is "secondary and/or derivative only" (presumably he means vicarious only); (2) that he is entitled to contribution and/or indemnification from Royal and Meg; (3) that he is an intended third-party beneficiary under the third-party defendants' liability insurance policies, and as such, the third-party defendants owe him a defense and complete indemnification; and (4) that the third-party defendants breached their duty of care to safeguard his vehicle and for this reason also, he is entitled to indemnification from them.

         Rokeach subsequently discontinued the third-party action against third-party defendants Breadberry Inc. and Meat. Rokeach, as third-party plaintiff, sought and obtained a default judgment against third-party defendant Meg on March 2, 2017. His third-party action against Royal Parking is pending and active.

         On March 1, 2016, Berger amended his complaint to add Royal Parking as a direct defendant, alleging that Royal Parking "contracted to provide" and "provided" valet parking services for the Breadberry Market (amended complaint at ¶¶ 11 and 12). The amended complaint alleges that Berger was struck and injured by a vehicle operated by defendant McNeil "in the scope of his employment for the Breadberry defendants" and "in the scope of his employment for [Royal Parking]" (id. at ¶¶ 15 and 16).

         On or about March 8, 2016, Royal Parking answered Berger's amended complaint, denying the material allegations therein and asserting affirmative defenses and cross claims for contribution against Rokeach, McNeil, Meg, Breadberry Inc. and Meat.

         On or about March 14, 2016, McNeil answered Berger's amended complaint, denying the material allegations therein and asserting affirmative defenses and cross claims for indemnification against Rokeach, Breadberry Inc., Breadberry USA, Meat and Royal Parking.

         On or about March 15, 2016, Rokeach answered Berger's amended complaint, denying the material allegations therein and asserting affirmative defenses and cross claims for indemnification: (1) against McNeil; (2) against Breadberry Inc., Breadberry USA, Meat and Royal Parking; (3) as a third-party beneficiary under the liability insurance policies held by Breadberry Inc., Breadberry USA, Meat and Royal Parking; (4) against Breadberry Inc., Breadberry USA, Meat and Royal Parking as a third-party beneficiary under the Valet Parking Contract and/or the Valet Parking ...


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