The opinion
Kaufman v Starbucks Corp.
2025 NY Slip Op 31614(U)
May 2, 2025
Supreme Court, New York County
Docket Number: Index No. 152147/2022
Judge: Emily Morales-Minerva
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 05/05/2025 01:01 PM INDEX NO. 152147/2022
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 05/05/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. EMILY MORALES-MINERVA PART 42M
Justice
--------------------X INDEX NO. 152147/2022
CAROL KAUFMAN
MOTION DATE 03/23/2025
Plaintiff,
MOTION SEQ. NO. 002
-v-
STARBUCKS CORPORATION, DECISION + ORDER ON
MOTION
Defendant.
--------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 41, 42, 43, 44, 45,
46,47,48,49, 50,51,52, 53,54,55
were read on this motion to/for SUMMARY JUDGMENT
APPEARANCES:
The Barnes, PC, New York, NY (Steven Michael Fleckner,
Esq., of counsel), for plaintiff.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY
(George N. Tompkins, Esq., of counsel), for defendant.
EMILY MORALES-MINERVA, J.S.C:
In this negligence action, defendant STARBUCKS CORPORATION
(defendant) moves, by notice of motion (sequence number 002),
for an order of summary judgment, dismissing the complaint of
plaintiff CAROL KAUFMAN (plaintiff) (see CPLR § 3212 [governing
summary judgment]). Plaintiff submits written opposition.
Now, for the reasons set forth below, the Court denies
defendant's application in its entirety.
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Motion No. 002
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BACKGROUND
Plaintiff CAROL KAUFMAN alleges that, on or around July 08,
2021, she entered a store known as Starbucks, to purchase food
and drink. Defendant STARBUCKS CORPORATION operated the store,
which was located at 3 rd Avenue and 23 rd Street, New York, New
York (premises).
According to plaintiff, after placing her order, she moved
along to the store's pickup counter where several people stood
to her left, to her right, and to her back (see New York State
Court Electronic Filing System [NYSCEF] Doc No. 47, Deposition
tr. of Carol Kaufman at 29, lines 8-25; at 30, lines 10-25; at
31, lines 2-14; at 35, lines 9-17).
Once plaintiff received her order, she turned to leave the
store, experienced a collision, and landed on the floor;
plaintiff attests that she did not see who she collided with and
that her collision could have been with more than one person
(see id. at 35, lines 11-24; at 36, lines 2-23).
At or around eight months later, plaintiff commenced this
action for negligence against defendant (NYSCEF Doc. No. 01,
Summons and Complaint, dated March 08, 2022) . 1 She maintains
1 Plaintiff initially included 296 THIRD AVENUE REALTY CORP. and IAB
MANAGEMENT INC. as defendants in this action. However, she discontinued the
action against these two entities, and the court (L.S. Headley, J.S.C.)
directed the caption be changed to reflect Starbucks as the sole remaining
defendant (see NYSCEF Doc. Nos. 30, Stipulation of Discontinuance Without
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Motion No. 002
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that defendant owed her a duty to keep the store in a reasonably
safe condition and that defendant breached that duty in
permitting the overcrowding, which proximately caused her
personal injuries (id.). As for damages, plaintiff broadly
seeks "an amount which exceeds the monetary jurisdictional
limits of all lower New York State Courts" plus costs and
disbursements (id.; see also CPLR § 3017 [c] [governing demands
for relief made in personal injury actions])
Defendant submits an answer, asserting 12 affirmative
defenses (see NYSCEF Doc. No. 008, Answer). Among these defenses
are intervening and superseding cause, and plaintiff's
negligence or culpable conduct (see id. at 1 48, 50). The
parties completed discovery, and plaintiff filed note of issue
on June 27, 2024.
Thereafter, defendant timely filed the instant motion (seq.
no. 002), seeking an order, pursuant to CPLR § 3212, granting it
summary judgment for lack of proximate cause. Relying on
plaintiff's deposition testimony, defendant asserts that
plaintiff fell and sustained injuries because another customer
bumped into her, not because of overcrowding (see NYSCEF Doc.
No. 42, Affirmation in Support by Defendant's Counsel, dated
October 24, 2024; see also NYSCEF Doc. 47, Deposition Transcript
Prejudice, dated March 03, 2023, and No. 33, Decision and Order, dated March
24, 2023).
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Motion No. 002
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of plaintiff Carol Kaufman, dated August 22, 2023). In further
support of this proposition, defendant submits the deposition
transcript of Eva Clas Mendez -- a barista employed at the
subject store. Therein, the barista attests that the store
received no complaints about overcrowding prior to plaintiff's
fall (see NYSCEF Doc. No. 48, Deposition Transcript of Eva Clas
Mendez, dated April 23, 2024).
Plaintiff counters that material issues of fact exist,
precluding summary judgment. She identifies these issues as
including if the premises were overcrowded on the date and time
of the incident and if plaintiff was capable of safely exiting
the premises when she fell (see NYSCEF Doc. No. 51, Plaintiff's
Affirmation in Opposition). While conceding that she collided
with someone(s), plaintiff maintains that the foreseeable
overcrowding of the subject store was an unsafe condition that
caused her injury (see id.)
ANALYSIS
Summary judgment is a drastic remedy which should only be
employed when there is no doubt as to the absence of triable
issues (see Andre v Pomeroy, 35 NY2d 361, 364 [1975); see also
Bronx-Lebanon Hosp. Ctr. V Mount Eden Ctr., 161 AD2d 480 [1st
Dept 1990)). "On a motion for summary judgment, the moving party
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Motion No. 002
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must 'make a prima facie showing of entitlement to judgment as a
matter of law, tendering sufficient evidence to demonstrate the
absence of any material issues of fact" (Nomura Asset Capital
Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49
[2015], citing Alvarez v Prospect Hosp., 68 NY2d 320, 324
[1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985];
CPLR § 3212 [b] ) .
Such evidence "shall" include an "affidavit . that
shall be by a person having knowledge of the facts; it shall
recite all the material facts; and it shall show that the
cause of action or defense has no merit" (CPLR § 3212 [b]; see
also Saunders v J.P.Z. Realty, LLC, 175 AD~d 1163, 1164 [1st
Dept 2019], citing GTF Mktg. v Colonial Aluminum Sales, 66 NY2d
965, 967 [1985]). "[A]n affidavit by an individual without
personal knowledge of the facts does not establish the
proponent's prima facie burden" (Saunders, 175 AD3d at 1164,
citing Vermette v Kenworth Truck Co., 68 NY2d 714 [1986)).
The court must view the facts in the light most favorable
to the non-movant, giving it the benefit of all reasonable
inferences (see De Lourdes Torres v Jones, 26 NY3d 742 [2016)).
"Summary judgment is inappropriate in any case where there are
material issues of fact in dispute or where more than one
conclusion may be drawn from the established facts" (Friends of
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Motion No. 002
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Thayer Lake LLC v Brown, 27 NY3d 1039, 1043 [2016], citing Kriz
v Schum, 75 NY2d 25, 33-34 [1989]).
To establish a claim of negligence, a plaintiff must prove
(1) that the defendant owes a duty of care to the plaintiff,
(2) that defendant breached that duty, and (3) that the breach
proximately caused plaintiff's injury (see Moore Charitable
Foundation v PJT Partners, Inc., 40 NY3d 150, 157 [2023], citing
Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825
[2016]).
"A defendant moving for summary judgment in a negligence
action has the burden of establishing, prima facie, that he or
she was not at fault in the happening of the subject accident"
(Hurst v Belomme, 142 AD3d 642 [2d Dept 2016]; see also Mazella
v Beals, 27 NY3d 694, 706 [2016] [providing that "a defendant's
negligence qualifies as a proximate cause where it is a
substantial cause of the events which produced the injury"],
quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]).
The question of proximate cause is uniquely fact-specific
where the acts of a third party intervene between the
defendant's conduct and the plaintiff's injury; therefore, such
question is generally "best left for the factfinder" (see Hain v
Jamison, 28 NY3d 524, 530 [2016]; see also Derdiarian, 51 NY2d
at 314-215). Key is "whether the intervening act is a normal or
foreseeable consequence of the situation" that defendant's
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Motion No. 002
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conduct created (Hain, 28 NY3d at 529, quoting Mazella, 27 NY3d
at 706 [emphasis in original]).
"It is only where the intervening act is extraordinary
under the circumstances. ., or independent of or far removed
from the defendant's conduct that it may possibly break the
causal nexus between the defendant's negligence and plaintiff's
injury (Hain, 28 NY3d at 529, quoting Mazella, 27 NY3d at 706
[internal quotation marks removed]). Further, as there may be
more than one proximate cause of any injury, that "other persons
share some responsibility for [a] plaintiff's harm does not
absolve [a] defendant from liability" (Mazella, 27 NY3d at 706;
Argentina v Emery World Wide Delivery Corp., 93 NY2d 554, 560 n
2 [1999] ) .
Applying these principles here, defendant has failed to
meet its burden. It submits only the affirmation of defendant's
counsel who has no demonstrated personal knowledge of the
incident (see generally Matter of Jaime v City of New York, 41
NY3d 531, 542 [2024] [relying on Zuckerman v City of New York,
49 NY2d 557, 563 [1980], which established that "the bare
affirmation of (an) attorney who demonstrates no personal
knowledge of the manner in which the accident occurred. is
without evidentiary value and unavailing"]; see also CPLR § 3212
[b] ) .
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Motion No. 002
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Defendant's reliance on the deposition transcript of its
barista is equally misplaced. Therein, the barista attests that
-- while she worked at the store on the day of the incident --
she was not present when it happened (see NYSCEF Doc No. 48,
Mendez's Deposition Tr. at 20, lines 7-17). The barista only
"heard about it" hours later when she arrived for her shift (id.
at 27, lines 17-25; at 28, lines 2-17; see also Patton v Genito,
202 AD3d 631, 632 [1st Dept 2022] [affidavit submitted by non-
party on behalf of defendant setting forth the details of the
accident as told to her by defendant constituted inadmissible
hearsay]).
Finally, plaintiff's concession that she felt a collision
prior to falling is not determinative of proximate cause (see
Mazella, 27 NY3d at 706).
Accordingly, it is hereby
ORDERED that motion (sequence no. 002) of defendant
STARBUCKS CORPORATION for an order of summary judgment is denied
entirely.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
~
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
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Motion No. 002
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