| Tarantino v Queens Ballpark Co., LLC |
| 2014 NY Slip Op 09118 [123 AD3d 1105] |
| December 31, 2014 |
| Appellate Division, Second Department |
[*1]
| Vincent Tarantino, Appellant, v QueensBallpark Company, LLC, et al., Respondents, et al.,Defendant. |
The Law Offices of Mark McKew, PLLC (Lawrence B. Goodman, New York, N.Y.,of counsel), for appellant.
Havkins Rosenfeld Ritzert & Varriale, LLP, New York, N.Y. (Carla Varrialeand Jarett L. Warner of counsel), for respondents Queens Ballpark Company, LLC,Sterling Mets, L.P., Sterling Mets Operations, LLC, Sterling Project DevelopmentGroup, LLC, Sterling Equities, Inc., New York City Industrial Development Agency, andCity of New York.
McMahon, Martine & Gallagher, LLP, Brooklyn, N.Y. (Patrick W. Brophy ofcounsel), for respondents Aramark Sports and Entertainment Group, LLC, AramarkSports and Entertainment Services, LLC, and Aramark Sports, LLC.
Perez & Varvaro, Uniondale, N.Y. (Denise A. Cariello of counsel), forrespondents Hok Group, Inc., Populous Group, LLC, and Populous Architects, P.C.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Queens County (Dufficy,J.), dated April 3, 2013, as granted that branch of the motion of the defendants QueensBallpark Company, LLC, Sterling Mets, L.P., Sterling Mets Operations, LLC, SterlingProject Development Group, LLC, Sterling Equities, Inc., New York City IndustrialDevelopment Agency, and City of New York which was pursuant to CPLR 3211 (a) todismiss the complaint insofar as asserted against the defendants Queens BallparkCompany, LLC, Sterling Mets, L.P., Sterling Mets Operations, LLC, Sterling ProjectDevelopment Group, LLC, Sterling Equities, Inc., and City of New York, granted thatbranch of the cross motion of the defendants Aramark Sports and Entertainment Group,LLC, Aramark Sports and Entertainment Services, LLC, and Aramark Sports, LLC,which was pursuant to CPLR 3211 (a) to dismiss the complaint insofar as assertedagainst them, granted that branch of the motion of the defendants Hok Group, Inc.,Populous Group, LLC, and Populous Architects, P.C., which was pursuant to CPLR3211 (a) to dismiss the complaint insofar as asserted against them, and denied his crossmotion for leave to amend the complaint.
Ordered that the order is affirmed insofar as appealed from, with one bill of costspayable to the respondents appearing separately and filing separate briefs.
The plaintiff allegedly sustained injuries when he was struck by a foul ball during aNew York Mets baseball game at Citi Field. He alleged that, at the time of the incident,he was [*2]seated at a table inside of a luxury suite withthe windows open. He commenced this action against, among others, the defendantsQueens Ballpark Company, LLC, Sterling Mets, L.P., Sterling Mets Operations, LLC,Sterling Project Development Group, LLC, Sterling Equities, Inc., and City of New York(hereinafter collectively the Mets defendants), Aramark Sports and Entertainment Group,LLC, Aramark Sports and Entertainment Services, LLC, and Aramark Sports, LLC(hereinafter collectively the Aramark defendants), and Hok Group, Inc., Populous Group,LLC, and Populous Architects, P.C. (hereinafter collectively the Hok Group defendants),alleging that his injuries were caused by the defendants' negligence with respect to thedesign, construction, operation, maintenance, management, control, and supervision ofthe subject premises. The Mets defendants, together with the defendant New York CityIndustrial Development Agency (hereinafter the NYCIDA), moved, inter alia, pursuantto CPLR 3211 (a) to dismiss the complaint insofar as asserted against them, and theAramark defendants cross-moved, inter alia, pursuant to CPLR 3211 (a) to dismiss thecomplaint insofar as asserted against them. Additionally, the Hok Group defendantsmoved, inter alia, pursuant to CPLR 3211 (a) to dismiss the complaint insofar as assertedagainst them, and the plaintiff cross-moved for leave to amend the complaint to addcertain party defendants. The Supreme Court granted that branch of the Mets defendants'motion, made together with the NYCIDA, which was pursuant to CPLR 3211 (a) todismiss the complaint insofar as asserted against the Mets defendants, that branch of theAramark defendants' cross motion which was pursuant to CPLR 3211 (a) to dismiss thecomplaint insofar as asserted against them, and that branch of the Hok Group defendants'motion which was pursuant to CPLR 3211 (a) to dismiss the complaint insofar asasserted against them. In addition, it denied the plaintiff's cross motion for leave toamend the complaint.
"[I]n the exercise of reasonable care, the proprietor of a ball park need only providescreening for the area of the field behind home plate where the danger of being struck bya ball is the greatest" (Akins v Glens Falls City School Dist., 53 NY2d 325, 331[1981]; see Rosenfeld v HudsonVal. Stadium Corp., 65 AD3d 1117, 1118 [2009]). So long as such screening "is'of sufficient extent to provide adequate protection for as many spectators as mayreasonably be expected to desire such seating in the course of an ordinary game,' theproprietor 'fulfills the duty of care imposed by law and, therefore, cannot be liable innegligence' " (Rosenfeld v Hudson Val. Stadium Corp., 65 AD3d at1118, quoting Akins v Glens Falls City School Dist., 53 NY2d at 331).
Here, the complaint alleged that the plaintiff was struck by a ball while seated in aluxury suite on the "Empire Level" of the premises, "located behind home plate," whilethe windows were open. The plaintiff did not allege that he was seated at field level, or inthe area of the field behind home plate when he was struck, or that the defendants failedto provide screening of a sufficient extent to provide adequate protection for as manyspectators as may reasonably be expected to desire seating in the area of the field behindhome plate in the course of an ordinary game. Thus, the complaint failed to state a causeof action (see CPLR 3211 [a] [7]; Akins v Glens Falls City School Dist.,53 NY2d at 331; Rosenfeld v Hudson Val. Stadium Corp., 65 AD3d at 1118).Moreover, although a plaintiff may remedy defects in a complaint by submitting anaffidavit in opposition to a motion to dismiss pursuant to CPLR 3211 (a) (see Rovellov Orofino Realty Co., 40 NY2d 633, 636 [1976]; Ferreira v Cellco Partnership, 111 AD3d 777, 778 [2013]),here, the plaintiff's affidavit failed to do so. Rather, the affidavit, to which the plaintiffattached a seating chart, established that the plaintiff has no cause of action, as itdemonstrated that he was not seated within the area of the field behind home plate(see Davidoff v Metropolitan Baseball Club, 61 NY2d 996, 997-998 [1984];Akins v Glens Falls City School Dist., 53 NY2d at 332; Pira v Sterling Equities, Inc.,16 AD3d 396, 396-397 [2005]; Ray v Hudson Val. Stadium Corp., 306AD2d 264, 264-265 [2003]; Sparks v Sterling Doubleday Enters., 300 AD2d467, 467-468 [2002]; cf. Correav City of New York, 66 AD3d 573, 574-575 [2009]; see generally Rovello vOrofino Realty Co., 40 NY2d at 636; Edmar Creations v Instrument Sys.Corp., 74 AD2d 632, 632 [1980]). Accordingly, the Supreme Court properly grantedthat branch of the Mets defendants' motion, made together with the NYCIDA, which waspursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against the Metsdefendants, that branch of the Aramark defendants' cross motion which was pursuant toCPLR 3211 (a) to dismiss the complaint insofar as asserted against them, and that branchof the Hok Group defendants' motion which was pursuant to CPLR 3211 (a) to dismissthe complaint insofar as asserted against them. Additionally, the Supreme Court properlydenied the plaintiff's cross motion for leave to amend the complaint to add certain [*3]party defendants, since the proposed amendment waspalpably insufficient and patently devoid of merit (see CPLR 3025 [b];DiNardo v Patcam Serv. Sta., 228 AD2d 543, 543-544 [1996]). Leventhal, J.P.,Hall, Austin and Roman, JJ., concur. [Prior Case History: 2013 NY Slip Op31126(U).]