Grebinger v. City of New York

2025 NY Slip Op 30529(U)

• Court: New York Supreme Court, New York County
• Decided: February 13, 2025
• Docket: Index No. 160389/2019
• Status: Unpublished

Opinion

Grebinger v City of New York 2025 NY Slip Op 30529(U) February 13, 2025 Supreme Court, New York County Docket Number: Index No. 160389/2019 Judge: Mary V. Rosado 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. [FILED: NEW YORK COUNTY CLERK 02/13/2025 12: 58 PM] INDEX NO. 160389/2019 NYSCEF DOC. NO. 146 RECEIVED NYSCEF: 02/13/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice -------------------------------------------------------------------------------X INDEX NO. 160389/2019 NOR KA GREBINGER, as the Administrator of the Estate of MOTION DA TE 05/24/2024 ALEXANDER FELICIANO, Deceased,

Plaintiff, MOTION SEQ. NO. 004

- V -

THE CITY OF NEW YORK, ASSOCIATION FOR THE HELP DECISION + ORDER ON OF RETARDED CHILDREN, INC.,717 SUBSIDIARY, MOTION LLC,ACHS MANAGEMENT CORP.,

Defendant. --------------------------------------------------------------------------------X

717 SUBSIDIARY, LLC, ACHS MANAGEMENT CORP. Third-Party Index No. 595727/2024 Plaintiff,

-against-

ROCK GROUP NY CORP.

Defendant. --------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 004) 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 137, 138, 139, 140, 142 were read on this motion to/for JUDGMENT-SUMMARY

Upon the foregoing documents, and after oral argument, which took place on November

12, 2024, where Justine B. Uy, Esq., appeared for PlaintiffNorka Grebinger as the Administrator

of the Estate of Alexander Feliciano ("Plaintiff'), Eric Kaplowitz, Esq. appeared for Defendants

AHRC New York City i/s/h/a Association for the Help of Retarded Children Inc. ("Moving

Defendant" or "AHRC"), and Lauren Turkel, Esq. appeared for Defendants 717 Subsidiary, LLC

and ACHS Management Corp., AHRC's motion for summary judgment dismissing Plaintiffs

Complaint and any and all crossclaims is granted in part and denied in part.

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I. Background

Alexander Feliciano ("Decedent"), an adult with developmental disabilities, attended an

AHRC program. As part of the program, AHRC took Decedent and others on various trips,

including to restaurants and movie theaters. On November 16, 2018, AHRC took Decedent and

others on a trip to Kellogg's Cafeteria in Union Square. Two AHRC employees were supervising

the trip when Decedent fell on ice on the sidewalk located at the intersection of 7th Avenue and

17th Street in Manhattan. AHRC now moves for summary judgment seeking dismissal of

Plaintiffs Complaint and all crossclaims asserted against them.

II. Discussion

"Summary judgment is a drastic remedy, to be granted only where the moving party has

tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v

Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and

on a motion for summary judgment, facts must be viewed in the light most favorable to the non-

moving party." (Jacobsen v New York City Health and Hasps. Corp., 22 NY3d 824, 833 [2014]).

Once this showing is made, the burden shifts to the party opposing the motion to produce

evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact

which require a trial (See e.g., Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]).

As a preliminary matter, Defendants 717 Subsidiary, LLC and ACHS Management Corp.

have not opposed dismissal of their crossclaims asserted against the Moving Defendant, and

therefore the crossclaims are dismissed as abandoned.

However, the Court denies Moving Defendant's motion to dismiss Plaintiffs Complaint.

Here, there is evidence that Moving Defendant's employees were not following AHRC guidelines

which required that the employees "always walk with or behind" AHRC attendees (NYSCEF Doc.

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139). It is undisputed that employees were walking in front of Plaintiff when he was injured.

Further, Ms. Bernard admitted it is part of her job is to intervene when program attendees are

"horsing around" to make sure attendees don't hurt themselves (NYSCEF Doc. 102 at 55) but that

did not take place here. It is a triable issue of fact as to whether Decedent's accident could have

been prevented if Ms. Bernard and her colleague were following AHRC protocols (see generally

!DX Capital, LLC v Phoenix Partners Group, 83 AD3d 569 [1st Dept 2011] [court's role on

summary judgment is issue finding, not issue resolution]).

Although Moving Defendant relies on the First Department's decision in Gomes v Boy

Scouts of America, 161 AD3d 560 (1st Dept 2018), the Court finds the facts of this case to be

distinguishable. In Gomes, the plaintiff was injured while attending a camping trip and running in

the dark away from an outdoor shower where horseplay was going on. The First Department found

that in such an instance, there was a lack of a possibility for visual supervision or verbal

intervention from supervisors, and plaintiff failed to show the accident was foreseeable. However,

here, the Decedent was in the proximity of AHRC employees, and the accident may have been

foreseeable as AHRC set forth guidelines that required its employees to walk "with or behind"

AHRC attendees, a guideline which was not being followed at the time of the accident. Moreover,

the evidence shows the Decedent was a developmentally disabled individual with Parkinson's

disease and a seizure condition. While there is evidence that Decedent was able to travel

independently, it is for a jury to decide whether AHRC's supervision of Decedent at the time of

his accident was reasonable under the circumstances (see, e.g. Rydzynski v North Shore University

Hosp., 262 AD2d 630 [2d Dept 1999]).

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Accordingly, it is hereby,

ORDERED that AHRC's motion for summary judgment dismissing Plaintiff's Complaint

and any and all crossclaims is granted in part and denied in part; and it is further

ORDERED that AHRC's motion is granted to the extent that Defendants 717 Subsidiary,

LLC and ACHS Management Corp. asserted against it is granted without opposition; and it is

further

ORDERED that AHRC's motion is otherwise denied; and it is further

ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of this

Decision and Order, with notice of entry, on all parties via NYSCEF.

This constitutes the Decision and Order of the Court.

2/13/2025 DATE HON. MAffr!V. ROSADO, J.S.C.

CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION : SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE : INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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