Eidelberg v G4S Secure Solutions (USA) Inc. 2024 NY Slip Op 32351(U) July 9, 2024 Supreme Court, New York County Docket Number: Index No.: 153273/2018 Judge: Louis L. Nock Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 153273/2018 NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 07/10/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LOUIS L. NOCK PART 38M Justice ---------------------------------------------------------------------------------X INDEX NO. 153273/2018 MARC EIDELBERG, 01/12/2023, Plaintiff, 01/13/2023, MOTION DATE 01/13/2023 -v- MOTION SEQ. NO. 003 004 005 G4S SECURE SOLUTIONS (USA) INC., FRANK QUINONES, SHAWN HURLEY, NYACK HOSPITAL, NYACK EMERGENCY MEDICAL ASSOCIATION, PLLC, DECISION + ORDER ON and BRENDA LIU, MOTION Defendants. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document numbers (Motion 003) 105-124, 174-179, 182-188, 192 (Motion 004) 143-162, 166-173, 177, 180, 186, 189-191, 193 (Motion 005) 125-142, 163- 165, 175, 181, and 194 were read on this motion for SUMMARY JUDGMENT .
LOUIS L. NOCK, J.S.C.
In this personal injury action, plaintiff alleges that he was assaulted by defendants Frank
Quinones and Shawn Hurley while attempting to leave the emergency department at defendant
Montefiore Nyack Hospital, improperly sued herein as Nyack Hospital (the “Hospital”).
Pending before the court are the motions for summary judgment of: (i) defendants G4S Secure
Solutions (USA) Inc. (“G4S”), Quinones, and Hurley (collectively, the “security defendants”)
(Motion Seq. No. 003); (ii) defendant Hospital (Mot. Seq. No. 004); and (iii) defendants Nyack
Emergency Medical Association (“NEMA”) and (Dr.) Brenda Liu (Mot. Seq. No. 005). The
motions are consolidated for disposition.
No party opposed the motion by defendants NEMA and Dr. Liu, and at oral argument on
the motions plaintiff’s counsel represented that plaintiff did not “oppose or object to the motion”
(transcript of proceedings, NYSCEF Doc. No. 193 at 6). Counsel for the security defendants 153273/2018 EIDELBERG, MARC vs. G4S SECURE SOLUTIONS (USA) Page 1 of 11 Motion No. 003 004 005
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also represented same (id. at 7). While counsel for the Hospital did not make such a
representation, the Hospital did not file any opposition to the motion. Accordingly, the court
grants the motion without opposition, and dismisses the complaint and all cross-claims made by
or against defendants NEMA and Dr. Brenda Liu.
Background
On January 1, 2012, G4S and the Hospital entered into a contract whereby G4S agreed to
provide security services to the Hospital (services contract, NYSCEF Doc. No. 168).1 G4S’
employees were under G4S’ sole control, except where the Hospital directed them to act contrary
to or refrain from performing duties set forth in the agreement (id., ¶ 5). Both parties agreed to
indemnify each other from “liability loss, damage and expenses (including reasonable attorneys’
fees) resulting from or arising out of this Contract to the extent [same] is proximately caused by
the negligent or willful act(s) or omission(s) by the party from whom indemnity is sought,
including such party’s agents, employees or subcontractors” (id., ¶ 7). Quinones and Hurley
were employees of G4S and were working at the Hospital at the time of the incident. The
Hospital is located at 160 N Midland Avenue, Nyack, New York.
Plaintiff was brought to the Hospital on December 10, 2017, after his wife contacted the
Orangetown Police Department in fear of plaintiff harming himself; plaintiff admitted himself to
the Hospital voluntarily (Eidelberg EBT tr, NYSCEF Doc. No. 119 at 35-36, 45-48). At a later
point, plaintiff attempted to leave the emergency room (Hurley EBT tr, NYSCEF Doc. No. 121
at 53). Quinones testified that security personnel attempted to convince plaintiff to remain in the
Hospital, at which point plaintiff allegedly lunged at Quinones as if to strike him (id. at 66; Liu
1 The contract refers to a “Schedule A” for a description of the scope of services to be provided by G4S (see, NYSCEF Doc. No. 168 § 1); but no Schedule A is found in the record. Upon the court’s inquiry of counsel regarding this anomaly, both the Hospital and the security defendants represented by email to the court that the referenced “Schedule A” was, in fact, not in effect at the time of the incident. 153273/2018 EIDELBERG, MARC vs. G4S SECURE SOLUTIONS (USA) Page 2 of 11 Motion No. 003 004 005
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EBT tr, NYSCEF Doc. No. 122 at 24; Quinones EBT tr, NYSCEF Doc. No. 123 at 34). Plaintiff
then left the Hospital and began walking towards Midland Avenue, during which time he is
alleged to have injured himself by either jumping from a two or two-and-a-half foot ledge
leading from the parking lot to the grass next to it (Hurley EBT tr at 78) or tripped over a six-
inch high curb outside of the Hospital while “backpedaling” (Quinones EBT tr at 43). He was
later diagnosed with a ruptured Achilles tendon (Eidelberg EBT tr, NYSCEF Doc. No. 119 at
95).
Plaintiff provides a different version of events. He states that he was told he was free to
leave and denies that he attempted to strike Quinones (id. at 57-58, NYSCEF Doc. No. 120 at
153-154). Plaintiff claims that Hurley pushed him out the door of the Hospital (NYSCEF Doc.
No. 119 at 67). Afterwards, he attempted to walk to a nearby friend’s house, when he was set
upon by Hurley, Quinones, and other unidentified security personnel (id. at 72-77; NYSCEF
Doc. No. 154-155, 157-158). During the alleged altercation, he felt something strike his left
lower leg, followed by a pop in the back of his left lower leg, and his leg buckled (NYSCEF
Doc. No. 119 at 83-84). He broke free of his alleged assailants, flagged down a nearby police
officer, and asked the officer to arrest the security personnel, which the officer stated he could
not do (id. at 77-80). Plaintiff returned to the Hospital in the company of Orangetown police
officers, where he was medicated and restrained and an incident report was generated (incident
report, NYSCEF Doc. No. 117).
Security footage from inside the Hospital shows that plaintiff was pushed out of the exit
doors of the Hospital at approximately 9:26 PM (Security Footage, NYSCEF Doc. No. 118).
The exterior camera then shows plaintiff and what appear to be three or more security personnel
walking out of the right side of the frame (id.). At approximately 9:29 PM, the security
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personnel return to the emergency room without plaintiff (id.). Finally, at approximately 9:32
PM, plaintiff, visibly limping, returns to the emergency room accompanied by Orangetown
police officers (id.). Whatever happened to cause plaintiff’s injury occurred off-camera. In
addition, given the angle of the camera and its placement relative to the doors to the emergency
room, it is difficult to tell whether or not plaintiff attempted to strike anyone before he was
pushed out of the doors.
Standard of Review
Summary judgment is appropriate where there are no disputed material facts (Andre v
Pomeroy, 35 NY2d 361, 364 [1974]). The moving party must tender sufficient evidentiary proof
to warrant judgment as a matter of law (Zuckerman v City of New York, 49 NY2d 557, 562
[1980]). “Failure to make such prima facie showing requires denial of the motion, regardless of
the sufficiency of the opposing papers” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]
[internal citations omitted]). Once a movant has met this burden, “the burden shifts to the
opposing party to submit proof in admissible form sufficient to create a question of fact requiring
a trial” (Kershaw v Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept 2013]). “[I]t is
insufficient to merely set forth averments of factual or legal conclusions” (Genger v Genger, 123
AD3d 445, 447 [1st Dept 2014] [internal citation omitted]). Moreover, the reviewing court
should accept the opposing party's evidence as true (Hotopp Assocs. v Victoria's Secret Stores,
256 AD2d 285, 286-287 [1st Dept 1998]), and give the opposing party the benefit of all
reasonable inferences (Negri v Stop & Shop, 65 NY2d 625, 626 [1985]). Therefore, if there is
any doubt as to the existence of a triable fact, the motion for summary judgment must be denied
(Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]).
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Discussion
The Security Defendants’ Motion (Mot. Seq. No. 003)
Plaintiff alleges two causes of action against the security defendants: assault and battery
(first cause of action) and negligence (second cause of action). The cause of action for
negligence against G4S sounds in negligent hiring, training, supervision, and retention. The
third cause of action seeks punitive damages. Turning to the first cause of action, “[t]o plead a
cause of action to recover damages for assault, a plaintiff must allege intentional physical
conduct placing the plaintiff in imminent apprehension of harmful contact” (Gould v Rempel, 99
AD3d 759, 760 [2d Dept 2012] [internal quotation marks and citations omitted]). “To recover
damages for battery, a plaintiff must prove that there was bodily contact, that the contact was
offensive, and that the defendant intended to make the contact without the plaintiff's consent”
(Kuznitz v Funk, 187 AD3d 1006, 1006 [2d Dept 2020]).
The primary thrust of the security defendants’ motion is that plaintiff’s version of events
is so inherently incredible as to not be believable. Even if the court could credit plaintiff’s
testimony, the security defendants argue that Quinones and Hurley were acting in self-defense,
as plaintiff initiated the confrontation. The court, when reviewing a motion for summary
judgment, is not empowered to make credibility determinations or weigh evidence (Art Capital
Group, LLC v Rose, 149 AD3d 447, 448 [1st Dept 2017]). Carthen v Sherman (169 AD3d 416,
417 [1st Dept 2019]), cited by the security defendants, is not to the contrary, as there, physical
evidence contradicted plaintiff’s version of how the relevant accident took place, and plaintiff’s
own testimony was inconsistent. Here, the relevant facts took place out of sight of the cameras,
there is no physical evidence to corroborate either version of how plaintiff injured his leg, and
Quinones and Hurley proffer different versions of how plaintiff allegedly injured himself. The
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court is not empowered to resolve the credibility dispute or weigh the testimony to resolve the
matter. Moreover, the many issues of fact involved in the competing versions of events preclude
any finding of self-defense at this juncture. Because the court denies summary judgment
dismissing the cause of action for assault and battery against Quinones and Hurley, they are not
entitled to dismissal of the claim for punitive damages (Berg v Chelsea Hotel Owner, LLC, 203
AD3d 484 [1st Dept 2022] [Plaintiffs' allegations regarding their earlier interactions with
defendant are sufficient to permit the request for punitive damages to proceed]).
G4S, however cannot be liable. To hold an employer vicariously liable for the tortious
conduct of its employees, a plaintiff must prove that the employees were acting within the scope
of their employment, and that the employee’s conduct could reasonably be expected by the
employer (Yildiz v PJ Food Serv., Inc., 82 AD3d 971, 972 [2d Dept 2011]). Further, an
employer will not be liable where its employees are acting in self-defense (Gregory v National
Amusements, Inc., 179 AD3d 468, 469 [1st Dept 2020]). Here, if the security defendants are
correct, Quinones and Hurley were acting in self-defense after plaintiff attempted to strike
Quinones, and thus G4S would not be liable. Even if they were not acting in self-defense, if
plaintiff injured himself through his own actions, respondent superior would not apply.
Conversely, if plaintiff is correct and he was unjustly set upon by security personnel, he fails to
dispute that G4S had no reasonable expectation that Quinones or Hurley would assault a patient.
As the unrebutted record demonstrates, Hurley had no criminal or disciplinary history, and was
sufficiently trained in the conduct of his duties (Hurley EBT tr, NYSCEF Doc. No. 121 at 8, 11-
13, 16, 122, 129-130). Nor does the record contain any evidence that G4S should have been
aware of any violent propensity on Quinones’ part. The court notes that plaintiff largely fails to
address this specific argument.
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Turning to the claim for negligence, plaintiff must prove “(1) a duty owed by the
defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom”
(Pasternack v Laboratory Corp. of America Holdings, 27 NY3d 817, 825 [2016]). As to Hurley
and Quinones, they do not dispute the potential existence of a duty to refrain from causing
plaintiff injury. The many issues of fact set forth above preclude summary disposition as to
whether they breached such a duty, causing plaintiff’s leg injury. As for G4S, respondeat
superior is unavailable to plaintiff for the same reasons as previously stated. To the extent that
plaintiff alleges negligent hiring, training, retention, or supervision, absent from the record is a
necessary element of such a claim, namely, that G4S knew that its employees “had any violent
propensities or that anything happened to alert them that an assault might take place” (Fambro v
City of New York, 205 AD3d 608, 609 [1st Dept 2022]). Plaintiff fails to raise a triable issue of
fact to the contrary (Kershaw, supra). Under either theory, then, G4S is entitled to dismissal of
the second cause of action for negligence. Because the court dismisses both of the tort causes of
action against G4S, the punitive damages claim against it must also fail (All-Boro A.C. Corp. v
Wales & Ward, Inc., 92 AD2d 486, 487 [1st Dept 1983] [New York law does not recognize “a
separate cause of action for punitive damages”]).
The Hospital’s Motion (Mot. Seq. No. 004)
There is no question in the record that Quinones and Hurley were employees of G4S
rather than the Hospital. “Generally, a party who retains an independent contractor, as
distinguished from a mere employee or servant, is not liable for the independent contractor's
negligent acts” (Brothers v New York State Elec. and Gas Corp., 11 NY3d 251, 257 [2008]
[internal quotation marks and citation omitted]). In order to hold the Hospital liable for their
actions, plaintiff must establish that one of several exceptions applies, specifically,
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[W]here the employer (1) is under a statutory duty to perform or control the work, (2) has assumed a specific duty by contract, (3) is under a duty to keep premises safe, or (4) has assigned work to an independent contractor which the employer knows or has reason to know involves special dangers inherent in the work or dangers which should have been anticipated by the employer.
(Rosenberg v Equitable Life Assur. Soc. of U.S., 79 NY2d 663, 668 [1992].) An employer may
also not insulate itself where it is negligent “in selecting, instructing, or supervising the
contractor” (Brothers, 11 NY3d at 258).
Here, the services contract specifically provides that G4S’ employees were under G4S’
“sole control and direction” (service contract, NYSCEF Doc. No. 168, ¶ 5). Accordingly, the
Hospital lacked the necessary control over “the method or means by which [Quinones and
Hurley’s] work was to be performed” (Chaouni v Ali, 105 AD3d 424, 425 [1st Dept 2013]).
Plaintiff argues that the Hospital gave security personnel their duty assignments and provided
crisis management training (Hurley EBT tr, NYSCEF Doc. No. 121 at 11-12, 15, 24-25).
Further, Hurley testified that a nurse directed him not to let plaintiff leave the Hospital (id. at
125-126). Quinones also testified that his immediate supervisor was employed by the Hospital
(Quinones EBT tr., NYSCEF Doc. No. 123 at 9-10, 56-57). This testimony amounts to
“incidental or general supervisory control,” which is insufficient to hold the Hospital liable
(Chaouni, 105 AD3d at 425). Plaintiff’s argument that the services contract required security
personnel to be employed by the Hospital is completely unsupported by the text of the
agreement. Finally, plaintiff argues that the Hospital was under a nondelegable duty to keep its
premises safe, but such a duty does not extend to spontaneous incidents the Hospital has no
opportunity to prevent or control (Afanador v Coney Bath, LLC, 91 AD3d 683 [2d Dept 2012]).
As established by the security footage, the entire incident herein took place over the course of
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approximately six minutes, at most. Plaintiff does not raise any of the remaining exceptions to
the general rule exempting the hospital from liability in his opposition.
Cross-Claims
Both the security defendants and the Hospital seek summary judgment dismissing each
other’s cross-claims. The Hospital also seeks summary judgment on its cross-claims for
contractual and common-law indemnification, and failure to procure insurance. As an initial
matter, the only party who has an indemnification agreement with the Hospital is G4S, and the
Hospital does not appear to oppose dismissal of its cross-claims against Quinones and Hurley.
The security defendants also do not appear to oppose the dismissal of their cross-claims against
the Hospital. As to the Hospital’s claims against G4S, the court has dismissed the complaint
against the Hospital, obviating any claim for common law indemnification. The services
contract provides that G4S will indemnify the Hospital for the “willful act(s) or omission(s)” of
G4S’ employees, including for the Hospital’s reasonable attorneys’ fees (services contract,
NYSCEF Doc. No. 191, ¶ 7). This action unquestionably falls within the terms of the services
contract. G4S asserts that the Hospital may be negligent based on its nondelegable duty to safely
maintain the premises, but as discussed above, such a duty does not extend to spontaneous
incidents like the one herein (Afanador, supra). The court will hold an inquest on the quantum
of the Hospital’s reasonable attorneys’ fees pursuant to said services contract provision following
trial of the main action.
The motions for summary judgement related to the cross-claim for failure to procure
insurance, however, are denied. The substance of this cross-claim is that G4S’ insurer
disclaimed coverage of this action, which the Hospital asserts is due to G4S’ failure to procure
insurance. The Hospital does not establish, however, that the policy procured by G4S fails to
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comply with the service contract’s requirements. Indeed, the policy is not attached to either
parties’ papers. Without the policy, the court cannot award judgment to either side. The denial
of coverage does not constitute a breach if the policy otherwise complies with the underlying
agreement (Perez v Morse Diesel Intern., Inc., 10 AD3d 497, 498 [1st Dept 2004]).
Accordingly, it is hereby
ORDERED that the motion for summary judgment of defendants G4S Secure Solutions
(USA) Inc. (“G4S”), Frank Quinones, and Shawn Hurley (Mot. Seq. No. 003), is granted to the
extent of dismissing: (i) the complaint against defendant G4S; (ii) the cross-claims against
defendants Quinones and Hurley; and (iii) the cross-claim for common law indemnification
against defendant G4S, and is otherwise denied; and it is further
ORDERED that the motion for summary judgment of defendant Montefiore Nyack
Hospital, improperly sued herein as Nyack Hospital (the “Hospital”) (Mot. Seq. No. 004), is
granted to the extent of dismissing: (i) the complaint against the Hospital; and (ii) all cross-
claims asserted against the Hospital, and in favor of the Hospital on its cross-claim for
contractual indemnification, and is otherwise denied; and it is further
ORDERED that the motion for summary judgment of defendants Nyack Emergency
Medical Association (“NEMA”) and Dr. Brenda Liu (Mot. Seq. No. 005) is granted; and it is
further
ORDERED that the Clerk of the Court is directed to enter judgment in favor of
defendants NEMA and Dr. Liu dismissing the complaint and all cross-claims against them, with
costs and disbursements to said defendants as taxed by the Clerk upon submission of an
appropriate bill of costs; and it is further
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ORDERED that plaintiff’s counsel shall efile the email communication regarding the
non-applicability of “Schedule A” of the services contract, referenced above (note 1), no later
than ten days from the date of filing hereof; and it is further
ORDERED that the remainder of the action is severed and shall continue; and it is further
ORDERED that this matter is respectfully referred to the Clerk of the Trial Assignment
Part to be scheduled for trial.
This constitutes the decision and order of the court.
ENTER:
7/9/2024 $SIG$ DATE LOUIS L. NOCK, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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