BRIAN LEONE v. JOHN DOE (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 003) 134, 135, 136, 137, 138, 139, 140, 143, 148, 150, 153, 154 were read on this motion to/for ORDER OF PROTECTION.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 144, 145, 146, 147, 149, 151, 152, 155 were read on this motion to/for SANCTIONS.

According to the complaint, this case is about injuries allegedly suffered by plaintiff Bronwen Leone (Leone) when she and her husband, Brian Leone (Brian) were guests at the premises of defendant The Lotos Club and Leone inhaled smoke and carbon monoxide while in their hotel room on the Club premises. It is undisputed that on May 23, 2015, plaintiffs were staying in room 507 of the Club, which had a non-working fireplace. It is also undisputed that, on that day, Club Executive Chef Raymond Holland started burning excess wood in the Library fireplace on the Club's second floor, which resulted in a heavy smoke condition and the activation of the Club's fire alarm at approximately 8:40 am on that date. The Fire Department left at about 9:13 am, after confirming the smoke condition was caused by the large fire in the Library. The defendant's Fire Command Log reflects that the fire alarm system was then turned off from about 8:40 am to 12:40 pm that day, to allow the Library fire smoke to clear (attached as Exhibit 26 to aff of Timothy Flanagan, NYSCEF Doc. No. 122, p. 20). Plaintiffs have provided evidence plaintiff Leone was taken to New York Presbyterian Hospital by ambulance approximately two hours later, where she was treated for smoke inhalation.

Plaintiffs have asserted two claims, one for Leone, sounding in negligence, and one for Brian, for loss of his wife's services.

In Motion Sequence Number 003, the Club moves for a protective order quashing the plaintiff's notice to admit. In Motion Sequence Number 004, plaintiffs move to strike the Club's answer as sanctions for its failure to comply with discovery demands and Court orders and the Club's failure to preserve evidence. Alternatively, plaintiffs move for summary judgment on the issue of liability.

I. MOTION 003- MOTION TO QUASH THE NOTICE TO ADMIT

Defendant moves pursuant to CPLR § 3103 and 3123, on the ground that the Notice to Admit seeks legal conclusions and the admission of ultimate material issues, which are not appropriate uses of the Notice to Admit, and is asking the defendant to admit or deny the statements made by the testimony of witnesses, to authenticate documents it did not create, and to admit facts which would establish liability. Therefore, the Club argues, the entire Notice to Admit should be struck.

However, defendant Club did respond to the Notice to Admit with a combination of admissions, denials, and objections in a document dated January 17, 2024 (Response to Plaintiffs' Notice to Admit, attached to Aff of Samantha R. Aster, Esq., as Exhibit D, NYSCEF Doc. No. 139). Accordingly, the motion for a protective order is denied as moot.

II. MOTION SEQUENCE NUMBER 004- PLAINTIFFS' MOTION FOR SANCTIONS AND SUMMARY JUDGMENT

In Motion Sequence Number 003, plaintiffs move for sanctions pursuant to CPLR 3126, striking the defendant Club's answer or precluding the defendant Club from introducing any evidence regarding the facts surrounding the incident at issue for the Club's destruction of, or failure to preserve, evidence such as the desk and security logs and video footage and for the Club's failure to respond to discovery demands and Court orders. Plaintiffs also move for summary judgment pursuant to CPLR 3212.

A. Summary Judgment

Plaintiffs seek summary judgment based on the res ipsa loquitor doctrine.

The standards for summary judgment are well settled. Summary judgment is a drastic remedy which will be granted only when the party seeking summary judgment has established that there are no triable issues of fact (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 329 [1986]; Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395 [1957]). To prevail, the party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law tendering evidentiary proof in admissible form, which may include deposition transcripts and other proof annexed to an attorney's affirmation (see Alvarez v Prospect Hosp., supra; Olan v Farrell Lines, 64 NY2d 1092 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Absent a sufficient showing, the court should deny the motion without regard to the strength of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

Once the initial showing has been made, the burden shifts to the party opposing the motion for summary judgment to rebut the prima facie showing by producing evidentiary proof in admissible form sufficient to require a trial of material issues of fact (see Kaufman v Silver, 90 NY2d 204, 208 [1997]). Although the court must carefully scrutinize the motion papers in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference (see Negri v Stop & Shop, 65 NY2d 625 [1985]) and summary judgment should be denied where there is any doubt as to the existence of a triable issue of fact (see Rotuba Extruders, v Ceppos, 46 NY2d 223, 231 [1978]), bald, conclusory assertions or speculation and "[a] shadowy semblance of an issue" are insufficient to defeat a summary judgment motion (S.J. Capalin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974]; see Zuckerman v City of New York, supra; Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, 259 [1970]).

Lastly, "[a] motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Ruiz v Griffin, 71 AD3d 1112 [2d Dept 2010], quoting Scott v Long Is. Power Auth., 294 AD2d 348 [2d Dept 2002]).

Res ipsa loquitur is a doctrine which permits the inference of negligence when: "(1) the event is of a type that does not normally occur in the absence of negligence, (2) it was caused by an instrumentality within the exclusive control of the defendants, and (3) plaintiff's actions did not contribute in any way to the occurrence" (Rosario v Cao, 223 AD3d 485, 486 [1st Dept 2024] citing Hodges v Royal Realty Corp., 42 AD3d 350, 351—352 [1st Dept 2007]). The application of the doctrine depends on "whether or not the occurrence does in truth point to negligence of the defendant as the fair and reasonable inference from the occurrence" (George Foltis, Inc. v City of New York, 287 NY 108, 117 [1941]). "The rule simply recognizes what we know from our everyday experience: that some accidents by their very nature would ordinarily not happen without negligence" (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226 [1986]).

Because the doctrine creates the inference, rather than a presumption of negligence, summary judgment is rarely granted on a claim of res ipsa loquitor. Upon occasion, summary judgment may be granted "when the plaintiff's circumstantial evidence is so convincing and the defendant's response so weak that the inference of defendant's negligence is inescapable" (Morejon v Rais Const. Co., 7 NY3d 203, 209 [2006]). For example, in George Foltis, Inc., the Court of Appeals agreed that the plaintiff's "proof that its property[ ] was damaged by a break in a water main constructed and controlled by the city was sufficient to establish prima facie that the injury was due to negligence" (George Foltis, Inc., 287 NY at 118).

Plaintiffs have brought evidence that, on May 23, 2025, plaintiff Leone was overcome by smoke inhalation while sleeping in her fifth-floor room in the Club. It is unknown exactly how the smoke filled plaintiffs' room, whether there was an incomplete sealing of the fireplace, a faulty chimney or flue, or some other method of entry. There was no apparent source of the smoke in her room and the fire alarm system had been shut off, due to a fire in the fireplace of the second-floor Library of the Club.

From everyday experience, the unmarked infiltration of smoke under these circumstances is not the type of event which usually occurs without someone's negligence. Therefore, the plaintiff has established the first prong of the test for the res ipsa loquitor doctrine.

As to the second prong, the Club admits to owning and operating the premises, so plaintiffs have established a prima facie case the Club had exclusive control over the fireplace/chimney/flue system, as well as the smoke/fire alarm system.

For the third prong, plaintiffs have provided evidence their actions did not contribute in any way to the occurrence, as Leone was sleeping while the smoke infiltrated the room and Brian had left the room to go to breakfast (Deposition tr of Bronwen Leone, attached as exhibit 21to Affirmation of Timothy Flanagan, NYSCEF Doc. No. 108, at 48-52).

Therefore, plaintiffs have established a prima facie inference of negligence under the res ipsa loquitor doctrine.

The Club's defenses are weak. Defendant argues it was not in exclusive control of the instrumentality of plaintiff's injury, since all guests and employees of the Club had access to the Library fireplace, where it had made a large fire that day, and the guestroom fireplaces. However, the issue is not the fire in the Library (or another) fireplace, but the infiltration of the smoke into plaintiffs' room and the lack of an alarm. As defendant has failed to rebut the inference of negligence, plaintiff's motion for summary judgment pursuant to the doctrine of res ipsa loquitor will be granted.

B. Discovery Sanctions

Plaintiffs also move for discovery sanctions. According to plaintiffs, the defendant Club has failed to produce its front desk log book for the relevant day, or the security log for that day, or footage from their security cameras for that day. Plaintiffs cite the deposition of John McGrath, Operations Manager of the Lotos Club, and the Club's failure to produce those documents, as evidence that the Club destroyed those documents. Plaintiffs thus seek sanctions for the spoliation of key evidence by the defendant.

CPLR 3126 provides that "[i]f any party. . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" the Court may order the issue resolve in favor of the opposing party, bar the offending party from introducing evidence or arguments on certain issues or even striking the pleading of the offending party. In light of the Court's decision above granting the plaintiffs summary judgment on the issue of liability, this portion of the motion is denied as moot.

III. CONCLUSION

For the reasons discussed above, it is hereby

ORDERED that the defendant's motion (003) to quash the plaintiff's Notice to Admit is hereby DENIED AS MOOT; and it is further

ORDERED that plaintiffs' motion (004) for sanctions and for summary judgment on liability is hereby GRANTED IN PART in that summary judgment is granted to plaintiffs on the issue of liability and otherwise denied; and it is further

ORDERED that a Judicial Hearing Officer ("JHO") or Special Referee shall be designated to hear and report to this court on the issue of damages, which is hereby submitted to the JHO/Special Referee for such purpose; and it is further

ORDERED that the powers of the JHO/Special Referee shall not be limited beyond the limitations set forth in the CPLR; and it is further

ORDERED that this matter is hereby referred to the Special Referee Clerk for placement at the earliest possible date upon the calendar of the Special Referees Part (Part SRP), which, in accordance with the Rules of that Part (which are posted on the website of this court), shall assign this matter at the initial appearance to an available JHO/Special Referee to hear and report as specified above; and it is further

ORDERED that counsel shall immediately consult one another and counsel for plaintiff shall, within 15 days from the date of this Order, e-mail an Information Sheet (accessible at the "References" link on the court's website) containing all the information called for therein and that, as soon as practical thereafter, the Special Referee Clerk shall advise counsel for the parties of the date fixed for the appearance of the matter upon the calendar of the Special Referees Part; and it is further

ORDERED that the parties shall appear for the reference hearing, including with all witnesses and evidence they seek to present, and shall be ready to proceed with the hearing, on the date fixed by the Special Referee Clerk for the initial appearance in the Special Referees Part, subject only to any adjournment that may be authorized by the Special Referees Part in accordance with the Rules of that Part; and it is further

ORDERED that, except as otherwise directed by the assigned JHO/Special Referee for good cause shown, the trial of the issue(s) specified above shall proceed from day to day until completion and counsel must arrange their schedules and those of their witnesses accordingly; and it is further

ORDERED that counsel shall file memoranda or other documents directed to the assigned JHO/Special Referee in accordance with the Uniform Rules of the Judicial Hearing Officers and the Special Referees (available at the "References" link on the court's website) by filing same with the New York State Courts Electronic Filing System (see Rule 2 of the Uniform Rules); and it is further

ORDERED that any motion to confirm or disaffirm the Report of the JHO/Special Referee shall be made within the time and in the manner specified in CPLR 4403 and Section 202.44 of the Uniform Rules for the Trial Courts; and it is further

ORDERED that, unless otherwise directed by this court in any Order that may be issued together with this Order of Reference to Hear and Report, the issues presented in any motion identified in the first paragraph hereof shall be held in abeyance pending submission of the Report of the JHO/Special Referee and the determination of this court thereon.

This constitutes the decision and order of the Court.

DATE 10/9/2026

Alexander M. Tisch, J.