Tung v. Bowery Presents LLC

2024 NY Slip Op 30267(U)

• Court: New York Supreme Court, New York County
• Decided: January 22, 2024
• Docket: Index No. 651051/2024
• Status: Unpublished

Opinion

Tung v Bowery Presents LLC 2024 NY Slip Op 30267(U) January 22, 2024 Supreme Court, New York County Docket Number: Index No. 161325/2019 Judge: Paul A. Goetz 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. 161325/2019 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 01/22/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 161325/2019 BELLE TUNG, BELLE TUNG, MOTION DATE 06/15/2023 Plaintiffs, MOTION SEQ. NO. 006 - V -

THE BOWERY PRESENTS LLC,AEG PRESENTS NY, LLC D/B/N PLAYSTATION THEATER, PARADOCS DECISION + ORDER ON WORLDWIDE INC.,CONCERT SERVICE SPECIALISTS, INC. D/B/A CSS SECURITY, INC., MOTION

Defendants. ------------------------------------------------------------------- --------------X

BELLE TUNG, BELLE TUNG MOTION Index No. 159402/2021 Plaintiffs, (Motion #002)

-against-

DUVAN DIAZ, JENNIFER VALENCIA,

Defendants. -------------------------------------------------------------------------------- X

The following e-filed documents, listed by NYSCEF document number (Motion 006) 145, 146, 147, 148, 149,150,151,152,153,154,155,156,157,158,159,160,161,162,163,164,165,166,167,168, 169, 170,171,172,173,174,175,176,177,178,179,197,199,200,202,203,204,205,206 were read on this motion to/for JUDGMENT-SUMMARY

In this wrongful death and medical malpractice action defendants, The Bowery Presents

LLC, AEG Presents NY LLC d/b/a Playstation Theater ("AEG"); and Paradocs Worldwide Inc.

("Paradocs") 1 move pursuant to CPLR § 3212 for summary judgement dismissing all of the

1 By stipulation dated December 1, 2022, plaintiffs discontinued their claims against Concert Service Specialists, Inc. d/b/a CSS Security with prejudice (NYSCEF Doc No 128). 161325/2019 TUNG, BELLE vs. BOWERY PRESENTS LLC Page 1 of 10 Motion No. 006

1 of 10 [* 1] INDEX NO. 161325/2019 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 01/22/2024

claims as against them by plaintiffs. In a related action (Belle Tung et al v Duvan Diaz et al,

Index No 159402/2021) which was previously ordered consolidated with this action, defendants

Duvan Diaz and Jennifer Valencia also move pursuant to CPLR § 3212 for summary judgement

dismissing all of the claims against them by plaintiffs. By decision and order dated September

21, 2023, this court ordered the instant case to be consolidated with Index No. 159402/2021

(NYSCEF Doc No 198). As the motions in both cases involve identical matters of fact and law,

and consolidation has not yet been effectuated both motions will be decided by this decision and

order.

BACKGROUND

Plaintiff, Belle Tung commenced this action following the death of her daughter Candice

Chen (NYSCEF Doc No 1) after attending an Electronic Dance Music concert at the then

PlayStation Theatre with her boyfriend, Anson Huynh, and other friends on May 12, 2018

(NYSCEF Doc No 200). In his deposition, Mr. Huynh stated that Ms. Chen had taken MDMA or

molly at some point during the night (Huynh EBT, NYSCEF Doc No 162 at 63: 16 - 64:9).

Shortly before midnight Ms. Chen told Mr. Huynh that she was not feeling well and Mr. Huynh

reported seeing her eyes roll back in her head and then collapsing (id. at 38: 16 - 39:25). Ms.

Chen was taken off the main dance floor and her friends went to find someone to help (id.).

A radio call was made from security supervisor James Green to EMT personnel

contracted by defendant AEG at 12:05 AM on May 13, 2018 (Green EBT, NYSCEF Doc No

169). AEG hired defendant Paradocs as an independent contractor to provide EMT services

during events taking place at the PlayStation theatre (NYSCEF Doc No 176). Paradocs had two

employee EMTs working the event, defendants Duvan Diaz and Jennifer Valencia (See Valencia

EBT, NYSCEF Doc No 163; Diaz EBT, NYSCEF Doc No 164).

161325/2019 TUNG, BELLE vs. BOWERY PRESENTS LLC Page 2 of 10 Motion No. 006

2 of 10 [* 2] INDEX NO. 161325/2019 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 01/22/2024

Ms. Chen was then placed in a wheelchair and moved to an area known as "Medic Alley"

where she was treated by defendants Diaz and Valencia. There is a dispute as to both the precise

timeline of events and Ms. Chen's condition when she was brought to the medical area.

However, the parties agree that the EMTs along with AEG employee Adetinuke Ogunleye

placed ice on Ms. Chen's head and attempted to give her juice which she was unable to drink.

Ms. Chen's vitals were checked, and she was ventilated using a Bag Mask Valve ("BMV"). Ms.

Chen's condition continued to deteriorate and due to difficulty with cell phone reception in

Medic Alley, she was brought upstairs and 911 was called. Defendants claim that 911 was called

at 12: 18 AM and FDNY EMS arrived at 12:22 AM (NYSCEF Doc No 171). However, plaintiffs

note the FDNY Prehospital Care Report which states that the call was received at 12:26 AM and

the EMS arrived at 12:30 AM (NYSCEF Doc No 173).

The FDNY paramedics transferred Ms. Chen to a stretcher where they "initiated all

advanced life support protocols ... which involves attempting advanced airway, advanced

medications, IV lines and ... continuous high quality CPR" (Stenborg EBT, NYSCEF Doc No

170 at 20:9 - 20: 13). The FDNY paramedics continued to work on Ms. Chen at the venue until

12:54 AM (NYSCEF Doc No 173). They arrived at the hospital at 12:58 AM. (id.) Attempts to

resuscitate Ms. Chen continued until 1:26 AM when she was pronounced dead (NYSCEF Doc

No 200). An autopsy was conducted, and the cause of death was determined to be "acute

methylenedioxymethamphetamine intoxication" (NYSCEF Doc No 178).

DISCUSSION

"It is well settled that 'the proponent of a summary judgment motion must make a prima

facie showing of entitlement to judgment as a matter oflaw, tendering sufficient evidence to

demonstrate the absence of any material issues of fact"' (Pullman v Silverman, 28 NY3d 1060,

161325/2019 TUNG, BELLE vs. BOWERY PRESENTS LLC Page 3 of 10 Motion No. 006

3 of 10 [* 3] INDEX NO. 161325/2019 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 01/22/2024

1062 [2016]). "A defendant moving for summary judgment dismissing a complaint alleging

medical malpractice must establish, prima facie, either that there was no departure from accepted

standards of medical care or that any departure was not a proximate cause of the plaintiffs

injuries" (Vidito v Hugelmeyer, 150 AD3d 1309, 1309-10 [2d Dept 2017]). If a defendant makes

this showing "by submitting an affirmation from a medical expert establishing that the treatment

provided to the injured plaintiff comported with good and accepted practice, the burden shifts to

the plaintiff to present evidence in admissible form that demonstrates the existence of a triable

issue of fact" (Bartolacci-Meir v Sassoon, 149 AD3d 567,570 [1st Dept 2017]). When there are

competing expert opinions regarding deviation from the accepted medical standards of care

summary judgement is inappropriate as triable issues of fact exist (Destiny H v Bronx Lebanon

Hosp., 137 AD3d 607 [1st Dept 2016]).

Plaintiffs allege causes of actions in these two related actions for negligence, wrongful

death, loss of services, pain and suffering, and medical malpractice. Plaintiffs' claims for

wrongful death, loss of services, and pain and suffering are dependent on a determination of

liability under the negligence claims therefore a determination on the negligence cause of action

will be dipositive of all causes of action in the complaint.

Negligence Against Valencia and Diaz

In the Belle Tung et al v Duvan Diaz et al, complaint plaintiffs allege four causes of

action against defendants Diaz and Valencia (Index No 159402/2021, NYSCEF Doc No 1).

Plaintiffs allege one claim of negligence, two claims of wrongful death, and one claim of loss of

services (id.). Diaz and Valencia move pursuant to CPLR § 3212 to dismiss the complaint in its

entirety arguing that the treatment provided to Ms. Chen did not deviate from accepted standards

of practice.

161325/2019 TUNG, BELLE vs. BOWERY PRESENTS LLC Page 4 of 10 Motion No. 006

4 of 10 [* 4] INDEX NO. 161325/2019 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 01/22/2024

The initial burden is on Diaz and Valencia to establish that the treatment they provided to

Ms. Chen was within the accepted standards of medical practice. Diaz and Valencia meet their

burden of proof by submitting the affidavit of Dr. Robert Meyer who opines that the treatment

rendered by Valencia and Diaz did not deviate from the accepted standard of medical practice

(NYSCEF Doc No 149 ,J 28).

However, plaintiffs have also satisfied their burden of raising an issue of fact by

submitting a conflicting affidavit from their own medical expert Dr. Kai Sturmann. In particular,

Dr. Sturmann opined that the on site EMTs failed to diagnose the severity of the decedent's

condition, that they waited too long to call 911, and that the use of a BMV while decedent was in

a seated position was inappropriate as a seated position can block the airways (NYSCEF Doc No

200 ,i 23-25). Accordingly, plaintiffs have raised a triable issue of fact in opposition to

defendants Valencia and Diaz's motion and summary judgement must be denied.

Negligence as against Paradocs

In the amended complaint of the case bearing Index No. 161325/19 plaintiffs allege five

causes of action against defendant Paradocs (NYSCEF Doc No 21). They allege one claim each

of negligence, medical malpractice, wrongful death, pain and suffering, and loss of services (id.).

Defendant Paradocs moves pursuant to CPLR § 3212 to dismiss the entire complaint arguing that

the treatment provided by their employees Diaz and Valencia did not deviate from accepted

standards of practice.

"An employer may be held vicariously liable for the tortious acts of its employee ... if

those acts were committed in furtherance of the employer's business and within the scope of

employment" (N. Xv Cabrini Med. Ctr., 280 AD2d 34, 37 [1st Dept 2001]). Here, the alleged

negligent actions were committed within the scope of defendants Diaz and Valencia's

161325/2019 TUNG, BELLE vs. BOWERY PRESENTS LLC Page 5 of 10 Motion No. 006

5 of 10 [* 5] INDEX NO. 161325/2019 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 01/22/2024

employment. Therefore, Paradocs can be found vicariously liable for the alleged negligence of

their employees Diaz and Valencia. Accordingly, for the same reasons summary judgement will

be denied as against Diaz and Valencia it must too be denied as against Paradocs.

Vicarious Liability as against AEG

In the amended complaint, plaintiffs allege four causes of action against defendant AEG

(NYSCEF Doc No 21). They allege one claim each of negligence, wrongful death, pain and

suffering, and loss of services (id.). Plaintiffs allege that AEG is vicariously liable for the alleged

negligence by their employees. Defendant AEG moves to dismiss the entire complaint arguing

that they cannot be held vicariously liable for any of the actions of co-defendants Diaz, Valencia,

or Paradocs as they were independent contractors. AEG also contends that while AEG employee

Ms. Ogunleye is a certified EMT she was not acting in her capacity as an EMT on the night of

Ms. Chen's death and any actions she took were under the direction and control of Paradocs

employees. Therefore, according to AEG' s argument, any negligent treatment cannot be

attributed to Ms. Ogunleye and thus it cannot be held vicariously liable.

"The general rule is that 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"

(Kleeman v Rheingold, 81 NY2d 270,273 [1993]). Exceptions to this rule include "negligence of

the employer in selecting, instructing or supervising the contractor; employment for work that is

especially or 'inherently' dangerous; and, finally, instances in which the employer is under a

specific nondelegable duty" (id.).

Here, plaintiffs have not submitted any evidence that AEG was negligent in selecting

Paradocs, that the work was inherently dangerous, or that providing medical services was a

nondelegable duty which AEG could not transfer to Paradocs (See Begley v City ofNew York,

161325/2019 TUNG, BELLE vs. BOWERY PRESENTS LLC Page 6 of 10 Motion No. 006

6 of 10 [* 6] INDEX NO. 161325/2019 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 01/22/2024

111 AD3d 5 [2d Dept 2013] [finding that the Department of Education could not be found

vicariously liable for negligence by independent contractor nursing services because "we cannot

find that the provision of nursing services is so integral to the DO E's core responsibility of

educating children that, as a matter of public policy, it can be deemed a nondelegable duty that

the DOE cannot be permitted to transfer to another"]). Therefore, AEG cannot be held

vicariously liable for the actions of Paradocs.

However, while AEG cannot be found vicariously liable for the actions of Diaz and

Valencia, there is a triable issue of fact regarding the services provided by their own employee

Ms. Ogunleye, who assisted the Paradocs EMTs that night. While defendant AEG argues that

Ms. Ogunleye did not initiate any care for the decedent on her own and was simply following the

direction of Paradocs EMTs, plaintiffs contend that Ms. Ogunleye, a certified EMT herself, took

actions on her own opening AEG to vicarious liability for her actions. If a fact finder was to

determine that Ms. Ogunleye was acting within the scope of her employment and was negligent

in her treatment of the decedent, then AEG could be found vicariously liable for her actions.

Accordingly, since there exists a triable issue of fact regarding Ms. Ogunleye' s role in rendering

care to Ms. Chen, AEG' s motion for summary judgement on this basis must be denied.

Negligence as against AEG

Plaintiffs also have a negligence claim against AEG independent of the allegedly

negligent medical services claim. Plaintiffs argue that the premises were not properly equipped

to protect Ms. Chen against the foreseeable dangers that could occur at an event of this type.

AEG avers it has complied with the industry standards for its venue and it did not breach a duty

of care to Ms. Chen.

161325/2019 TUNG, BELLE vs. BOWERY PRESENTS LLC Page 7 of 10 Motion No. 006

7 of 10 [* 7] INDEX NO. 161325/2019 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 01/22/2024

"In order to prevail on a negligence claim, a plaintiff must demonstrate; 1) a duty owed

by the defendant to the plaintiff, 2) a breach thereof, and 3) injury proximately resulting

therefrom" (Pasternack v Lab. Corp. ofAm. Holdings, 27 NY3d 817 [2016]). It is well

established that an owner of a theatre has a duty to guard against harms which are reasonably

foreseeable and could be avoided with the exercise of ordinary care (Tantillo v Goldstein Bros.

Amusement Co., 248 NY 286 [1928]). "Foreseeability of risk is an essential element of a fault-

based negligence cause of action because the community deems a person at fault only when the

injury-producing occurrence is one that could have been anticipated" (Di Ponzio v Riordan, 89

NY2d 578, 583 [1997]). When an event has a known history of drug use, dangers associated with

that drug may be deemed foreseeable (Bynum v Camp Bisco, LLC, 198 AD3d 1164 [3d Dept

2021]).

Here, AEG by hiring an EMT company to provide medical care, implies that it concedes

it is foreseeable that its patrons could need medical attention during events. Additionally, AEG

employee Ms. Ogunleye testified in her deposition that prior to certain shows AEG employees

would have a meeting during which they discussed the likelihood that there would be drug use at

the event (Ogunleye EBT, NYSCEF Doc No 166 at 22:22 - 24:23). Referencing the event Ms.

Chen attended Ms. Ogunleye stated that "it is an EDM [Electronic Dance Music] show and that

crowd usually brings interesting characters and sometimes there is drug use" (id. at 24: 17 -

24:20). AEG employee Justin Grover also testified that AEG employees were told to contact an

EMT if a patron told them they had taken MDMA (Grover EBT, NYSCEF Doc No 165 at 40:22

- 41:3). Considering the facts in the light most favorable to the plaintiffs, the risk of medical

emergencies including overdoses were foreseeable and AEG had a duty to protect from these

risks.

161325/2019 TUNG, BELLE vs. BOWERY PRESENTS LLC Page 8 of 10 Motion No. 006

8 of 10 [* 8] INDEX NO. 161325/2019 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 01/22/2024

For proof that it did not breach this duty of care, defendant AEG offers an affidavit by

hospitality expert Marissa Orlowski, Ph.D., wherein she states that AEG has complied with the

industry standards of care that are expected from a venue of the size and type of the PlayStation

Theatre (NYSCEF Doc No 150). Plaintiffs did not offer an expert opinion countering Dr.

Orlowski's contentions that AEG was in compliance with industry standards. However, Dr.

Orlowski admits she has no medical training and defers to the assertions regarding medical care

to the medical experts (id. at ,i 14).

Since many of the allegations regarding AEG' s negligence made by plaintiffs stem from

factual issues on how to properly plan for and respond to a medical emergency, the assertions

made by Dr. Orlowski cannot by themselves absolve AEG ofliability. For example, considering

that it was foreseeable that patrons could have potentially overdosed at the concert, a fact finder

could determine that it was unreasonable for AEG to place "Medic Alley" in an area without cell

phone or landline service. Considering the expert medical knowledge that is necessary to

determine how to properly assess an overdosing patient and how a delay in contacting 911 can

affect the patient, Dr. Orlowski's testimony is not dispositive of the issue ofliability for AEG.

Therefore, there are unresolved issues of fact regarding whether AEG breached its duty of care to

the decedent. Accordingly, AEG' s summary judgment motion must be denied in its entirey.

Accordingly it is:

ORDERED that defendants The Bowery Presents LLC, AEG Presents NY LLC d/b/a

Playstation Theater and Paradocs Worldwide Inc.' s motion for summary judgement dismissing

the complaint in the action bearing Index No. 161325/2019 (MS# 6) is denied; and it is further

161325/2019 TUNG, BELLE vs. BOWERY PRESENTS LLC Page 9 of 10 Motion No. 006

9 of 10 [* 9] INDEX NO. 161325/2019 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 01/22/2024

ORDERED that defendants Duvan Diaz and Jennifer Valencia's motion for summary

judgment dismissing the complaint in the action bearing Index No. 159402/2021 (MS #2) is

denied; and it is further

ORDERED that plaintiffs who previously moved to consolidate Belle Tung et al v The

Bowery Presents LLC et al, Index No. 161325/2019 with Belle Tung et al v Duvan Diaz et al,

Index No. 159402/2021, which was granted by decision and order dated September 21, 2023

(NYSCEF Doc No 198) shall fully comply with the requirements therein within 20 days of the

date of this decision and order to effectuate the consolidation of the two actions.

1/22/2024

8 DATE PAUL A. GOETZ, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

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

161325/2019 TUNG, BELLE vs. BOWERY PRESENTS LLC Page 10 of 10 Motion No. 006

10 of 10 [* 10]