FILED: NASSAU COUNTY CLERK 05/07/2020 11:09 AM INDEX NO.

INDEX NO. 614031/2017

DOC. NO.
NYSCEF DOC. NO. 186 NYSCEF: 05/04/2020
RECEIVED NYSCEF: 05/04/2020

SHORT FORM ORDER

SUPREME COURT - STATE OF NEW YORK
COUNTY OF NASSAU
Present:
Hon. Thomas Feinman
Justice
-----------------------------------------------------------------------x TRIAL/IAS PART 4
TIMOTHY WALL, NASSAU COUNTY

Plaintiff, INDEX NO. 614031/17

- against - XX X

STARBUCKS CORPORATION, MOTION SUBMISSION

DATE: 2/7/20
Defendant.
-----------------------------------------------------------------------x MOTION SEQUENCE
The following papers having been read on this motion: NOS. 8 & 9

Notice of Motion and Affidavits .................................. . X

Affirmation in Opposition ......................................... . X
Reply Affirmation .................................................. .. X

Relief Requested

Motion by the defendant, Starbucks Corporation, for an order pursuant to CPLR 3212
granting summary judgment in its favor dismissing the instant action (Sequence No. 8). Cross
motion by the plaintiff, Timothy Wall, for an order granting him leave to amend his complaint to
add a cause of action for public nuisance with accompanying injunctive relief (Sequence No. 9).
The plaintiff files a memorandum of law in opposition to the defendant's motion and in support of
his cross motion. The defendant submits opposition to the plaintiff's cross motion and a reply
affirmation with regard to its motion for summary judgment. The plaintiff submits reply and a
sur-reply with regard to the defendant's motion for summary judgment.

Background

The plaintiff initiated this action to recover for personal injuries sustained inside the
defendant's retail establishment, located at 600 8th A venue in Manhattan, New York. The plaintiff,
a Sergeant with the New York Police Department (hereinafter "NYPD") in the district of the

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establishment at issue, responded to a call from the defendant on September 18, 2017 regarding an
unruly individual who was later identified as Montclair Mobley.

After initially behaving peacefully upon entering the subject location, Mr. Mobley
eventually began yelling at customers and preventing them from using nearby furniture. When
Mr. Mobley refused to leave the premises, a security guard called the NYPD, and the plaintiff
responded along with another officer. Upon being told that Mr. Mobley was sleeping, yelling at
customers, and refusing to leave, the plaintiff attempted to convince him to leave, but Mr. Mobley
continued to refuse.

After approximately fifteen minutes, Mr. Mobley began to yell and became angry.
Ultimately, the plaintiff decided to handcuff Mr. Mobley, at which point Mr. Mobley resisted,
reaching or lunging toward a bag under his chair. The plaintiff and other officer attempted to
restrain Mr. Mobley's arms so he could not take anything from his bag, and a physical altercation
ensued, resulting in the plaintiff's shoulder becoming dislocated.

The plaintiff alleges causes of action sounding in negligence under General Obligation Law
§ 11-106 and under General Municipal Law § 205-e.

Applicable Law

"To obtain summary judgment it is necessary that the movant establish his cause of action
or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor
(CPLR 3212 [b], and he must do so by tender of evidentiary proof in admissible form" (Zuckerman
v. City of New York, 49 N.Y.2d 557, citing Friends of Animals v. Associated Fur Manufacturers,
46 N.Y.2d 1065). Once the movant for summary judgment has met his or her burden, it is
incumbent upon the party opposing said motion to produce evidentiary proof in admissible form
sufficient to establish material issues of fact which warrant a trial (see Alvarez v. Prospect Hosp.,
68 N.Y.2d 320; see also CPLR 3212[b])."

General Obligations Law § 11-106 allows a police officer to bring a tort claim for injuries
suffered in the line of duty as the result of, inter alia, the negligence of any person other than the
police officer's employer or co-employee (Cioffi v. S.M. Foods, Inc., 178 A.D.3d 1006, citing
Williams v. City of New York, 2 N.Y.3d 352). This rule provides that police officers may not
recover for injuries resulting for risks associated with the particular dangers inherent in that type
of employment (see Gammons v. City of New York, 109 A.D.3d 189, citing Wadler v. City of New
York, 14 N.Y.3d 192).

A police officer injured in the line of duty seeking to recover under General Municipal Law
§ 205-e must, inter alia, "set forth those facts from which it may be inferred that the defendant's

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negligence directly or indirectly caused the harm" (Frunzi v. Sonn, 150 A.D.3d 700, citing Zanghi
v. Niagara Frontier Transp. Commn., 85 N.Y.2d 423).

A party moving for leave to amend must make some evidentiary showing that a proposed
amendment has merit (Curran v. Auto Lab Serv. Ctr., 280 A.D.2d 636). The motion to amend will
be granted "unless the insufficiency or lack of merit is clear and free from doubt" (Noanjo Clothing
v. L &M Kids Fashion, 207 A.D.2d 436).

To constitute a public nuisance, the offending party's actions must damage or infringe upon
the exercise of rights common to all people, such as interfering with the public's right to use a
public place (Haire v. Bonelli, 57 A.D.3d 1354, citing Copart Indus. v. Consolidated Edison Co.
of N.Y, 41 N.Y.2d 564).

Discussion

Here, the plaintiff had been speaking to the disorderly customer for approximately fifteen
minutes, and the interaction only became physical when the plaintiff attempted to handcuff this
individual. The ensuing struggle which caused the plaintiff's injury was unforeseeable by the
defendant, and as such, this Court finds that the defendant took reasonable precautionary measures
to keep the premises safe and minimize the risk of danger to customers (see Tambriz v. P .G.K.
Luncheonette, Inc., 124 A.D.3d 626). The evidence clearly demonstrates that these precautions
included the retention of security personnel who properly observed Mr. Mobley entering the
premises, allowed him to remain on the premises until he became unruly, called the police when
he refused to leave, and allowed the police officers to handle the situation once they arrived.

In light of the foregoing, the defendant has established that, upon attempting to apprehend
Mr. Mobley, the plaintiff assumed risks associated with the particular dangers inherent in his type
of employment (see Gammons, supra; see also General Obligations Law § 11-106). In addition,
given the circumstances presented, there is no evidence of negligence on the part of the defendant
or that any potential negligence directly or even indirectly caused the harm to plaintiff (see Frunzi,
supra; see also General Municipal Law§ 205-e).

Similarly, this Court finds that the plaintiff's proposed amendment seeking to add a cause
of action for public nuisance with related injunctive relief is meritless, as the defendant's premises
is private property and there has been no allegation of an interference with rights belonging to the
general public or an interest in public land (see CPLR 3025; see Haire, supra; see also Noanjo
Clothing, supra).

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Conclusion

Accordingly, it is hereby

ORDERED that the defendant's motion for summary judgment dismissing the instant
action is granted, and it is further

ORDERED that the plaintiff's cross motion for leave to amend his complaint is denied.

ENTER

/S/
HON. THOMAS FEINMAN
J.S.C.
DATED: May 1, 2020
ENTERED
May 07 2020
NASSAU COUNTY
COUNTY CLERK'S OFFICE

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