Lauren Bourdeau, Plaintiff, v. KEURIG DR PEPPER INC (2026)

The following papers numbered 1- 10 were read and considered as to Defendant/Third-Party Plaintiff SODEXO OPERATIONS, LLC 's Notice of Motion (Motion Seq. No. 3) for an Order for (1) summary judgment pursuant to Civil Practice Law and Rules § 3212 dismissing Plaintiff's complaint in its entirety, (2) summary judgment pursuant to Civil Practice Law and Rules § 3212 dismissing any and all crossclaims asserted by MONTEFIORE NYACK HOSPITAL as against SODEXO OPERATIONS, LLC, (3) summary judgment pursuant to Civil Practice Law and Rules § 3212 granting the third-party claims of SODEXO OPERATIONS, LLC for contractual and common law indemnification and contribution against MONTEFIORE NYACK HOSPITAL, including reimbursement of attorney's fees, (4) any such other and further relief as this Court deems just and proper; and also read and considered as to Plaintiff's Notice of Cross-Motion (Motion Seq. No. 4) for an Order, pursuant to Civil Practice Law and Rules § 3212 granting summary judgment for the Plaintiff together with such other and further relief as this Court may deem just and proper:

PAPERS NUMBERED

Notice of Motion (Motion Seq. No. 3)/Affirmation of Lauren M. Fibel, Esq./Certificate of Compliance/Exhibits A-B 1

Notice of Cross Motion (Motion Seq. No. 4)/Affirmation of Marshall Adam Neimark, Esq. in opposition and in support (Motion Seq. Nos. 3 and 4)/Exhibit 1 2

Affirmation of Lauren M. Fibel, Esq. in Opposition (Motion Seq. No. 4) 3

Affirmation of Lauren M. Fibel, Esq. in Reply (Motion Seq. No. 3) 4

Affirmation of Marshall Adam Neimark, Esq. in Reply (Motion Seq. No. 4) 5

Affirmation of Alexa Rissoff, Esq. in Support (Motion Seq. No. 3)/Exhibits A-C 6

Affirmation of Alexa Rissoff, Esq. in Opposition (Motion Seq. No. 4)/Exhibits A-C 7

Affirmation of Marshall Adam Neimark in Opposition and Reply

(Motion Seq. No. 4) 8

Affirmation of Kenneth M. Calvey, Esq. in Opposition (Motion Seq. No. 3) 9

Affirmation of Lauren M. Fibel, Esq. in Reply (Motion Seq. No. 3)/Certificate of Compliance 10

PROCEDURAL HISTORY

The Plaintiff commenced this action with the filing of Summons and Complaint on August 29, 2023, alleging she sustained serious and permanent injuries on July 20, 2023, when a door from a Snapple cooler struck her as she opened the door to obtain a drink while in the cafeteria at Montefiore Nyack Hospital. Defendant SODEXO OPERATIONS, LLC (hereinafter SODEXO) was served pursuant to Business Corporation Law § 306 by service on the Secretary of State of the New York on September 7, 2023. Defendant SODEXO joined issue with the filing of a Verified Answer raising twelve (12) Affirmative Defenses on September 21, 2023.

Plaintiff filed an Amended Verified Complaint on September 22, 2023, and subsequently a Request for Judicial Intervention (hereinafter RJI). On November 9, 2023, Defendant SODEXO joined issue with the filing of a Verified Answer raising twelve (12) Affirmative Defenses.

The parties appeared for a virtual Preliminary Conference on November 29, 2023, after which a Preliminary Conference Order dated December 5, 2023, was issued. On March 12, 2024, a Compliance Conference Stipulation and Order was issued directing service and response of discovery demands/responses, service of authorizations, and on or before date for party depositions, the date for an independent medical examination and time to serve a subpoena for, at the time, non-party depositions of Montefiore Nyack Hospital. The Order directed a Compliance Conference on May 15, 2024. On May 16, 2024, an updated Compliance Conference Stipulation and Order was issued and directed a further Compliance Conference on August 14, 2024.

On July 17, 2024, Defendant SODEXO filed a Third-Party Complaint against third-party Defendant MONTEFIORE NYACK HOSPITAL (hereinafter MONTEFIORE). Third-Party Defendant MONTEFIORE was personally served on August 1, 2024, by service on Maria Candaleria, Risk Management for MONTEFIORE. Third-Party Defendant MONTEFIORE joined issue with the filing of a Verified Answer setting forth twenty-nine (29) Affirmative Defenses and six (6) counterclaims.

On August 14, 2024, an updated Compliance Conference Order was issued which addressed discovery that included the newly impleaded third-party Defendant. Subsequently, on March 4, 2025, and April 22, 2025, updated Compliance Conference Orders were issued.

On June 23, 2025, the Plaintiff filed a Note of Issue and Certification of Readiness for Trial. On August 20, 2025, Second Third-Party Defendant KEURIG DR. PEPPER, INC. (hereinafter KEURIG) joined issue with the filing of a Verified Answer raising eighteen (18) Affirmative Defenses and four (4) Cross-Claims against Defendants SODEXO and MONTEFIORE.

On July 11, 2025, Defendant/Third-Party Plaintiff SODEXO filed a motion (Motion Seq. No. 1) seeking to vacate the Note of Issue filed by Plaintiff and allowing discovery as to the newly filed second third-party action. On July 17, 2025, Defendant SODEXO filed a second third-party complaint against second third-party Defendant KEURIG DR. PEPPER, INC. (hereinafter KEURIG). On July 23, 2025, Plaintiff filed a motion (Motion Seq. No. 2) for an order pursuant to Civil Practice Law and Rules §§ 1010 and 693.

The Hon. Hal B. Greenwald, J.S.C. (retired) issued a Decision and Order Vacating the Note of Issue filed on June 23, 2025, directing discovery as to the second third-party complaint, and extended the time to file summary judgment motions one hundred twenty (120) days from the completion of discovery. The Court by Decision and Order dated October 16, 2025 (filed on NYSCEF on October 24, 2025) denied Plaintiff's cross-motion (Motion Seq. No. 2) to sever the Second Third-Party action.

On August 22, 2025, Defendant SODEXO filed the instant motion for Summary Judgment (Motion Seq. No. 3). On September 4, 2025, the Plaintiff filed the instant cross motion for Summary Judgment (Motion Seq. No. 4).

ARGUMENTS

Defendant SODEXO's Motion for Summary Judgment (Motion Seq. No. 3)

Defendant SODEXO's Arguments in Support of Motion for Summary Judgment (Motion Seq. No. 3) dismissing Plaintiff's complaint

In their first argument SODEXO contends that -- based upon surveillance video from Montefiore Nyack Hospital -- the subject Snapple cooler (hereinafter cooler) door was functioning properly less than a minute before Plaintiff's accident until an unidentified cafeteria patron broke the door hinge and, as a result, there was no time for Defendant's to have actual or constructive notice of the condition. Also, SODEXO asserts that Plaintiff and the cafeteria managers confirmed in their examinations before trial (hereinafter EBTs) that the cooler was used and inspected daily with no complaints regarding a broken hinge. SODEXO's second argument is that it had no duty to maintain the cooler as that duty belonged solely to either Defendants MONTEFIORE or KEURIG based upon the contractual agreements between the parties. Thus, Defendant SODEXO asserts that it is entitled to summary judgment against the Plaintiff and dismissal of the complaint.

In support of their second argument, SODEXO contends that it did not have a common law or contractual duty to repair or maintain the cooler. SODEXO argues that even though there is a dispute as to ownership of the cooler between the MONTEFIORE and KEURIG Defendants, there is no dispute that SODEXO did not own the cooler. Referring to the contract between Defendants MONTEFIORE and SODEXO, movant SODEXO asserts that the agreement expressly states that MONTEFIORE is responsible for providing and maintaining all equipment. Therefore, according to SODEXO, since it did not own the cooler or provide the cooler, it had no common law duty to repair and maintain it.

In addition, SODEXO, citing Espinal v Melville Snow Contrs., avers that a contractual obligation alone does not rise to tort liability in favor of a third party without a demonstration of the three (3) exceptions and that none of the Espinal exceptions apply to the subject facts. See Espinal v Melville Snow Contrs., 98 NY2d 136, 140 (2002). Specifically, SODEXO asserts that an unidentified patron launched the instrumentality of harm by forcibly closing the cooler door and breaking the hinge. Also, SODEXO argues that the Plaintiff could not have relied upon their continued performance of their contractual duties since SODEXO did not have a contractual duty to maintain or repair the coolers. Last, SODEXO avers that the management agreement between them and MONTEFIORE does not displace MONTEFIORE's duty to maintain the premises.

Next, SODEXO asserts that the Plaintiff cannot establish that it breached any duty since it neither created nor had notice of the alleged condition. SODEXO contends that in contrast to Plaintiff's claims the broken hinge of the subject cooler had not existed for a "considerable length of time" before Plaintiff's accident as evidenced by the surveillance footage which demonstrates an unidentified patron, employed by MONTEFIORE, opened and closed the subject cooler door less than one (1) minute before Plaintiff's accident.

According to SODEXO, the unidentified patron in the surveillance video appears to be looking at the broken hinge after closing the door, holding her hand against the cooler while looking around the cafeteria and does not report the broken hinge. Instead, she continues toward the register to pay. Further, SODEXO asserts that the Plaintiff's accident occurred less than thirty (30) seconds after the unidentified patron's actions and there were no SODEXO employees in the vicinity, only a cashier employed by Defendant MONTEFIORE, who would have had less than thirty (30) seconds to notify a SODEXO employee. Based upon the actions observed on the surveillance video, SODEXO argues it did not create the broken hinge in the subject cooler and therefore it had no notice of the alleged condition. Additionally, SODEXO contends that constructive notice cannot be established because the defect in the cooler did not exist for a sufficient amount of time before the accident to permit discovery.

Defendant SODEXO's Arguments in Support of Motion for Summary Judgment (Motion Seq. No. 3) dismissing any and all crossclaims asserted by MONTEFIORE NYACK HOSPITAL as against SODEXO OPERATIONS, LLC and granting the third-party claims of SODEXO OPERATIONS, LLC for contractual and common law indemnification and contribution against MONTEFIORE NYACK HOSPITAL

SODEXO also asserts that it is entitled to summary judgment on their third-party claims of common law indemnification and contribution against Defendant MONTEFIORE and that MONTEFIORE's counterclaims for common law and contractual indemnification should be dismissed. According to SODEXO -- in support of their claims against MONTEFIORE — it has demonstrated that MONTEFIORE's unidentified employee closed the cooler door and forcefully caused damage to the door hinge. Further, SODEXO asserts that based upon the surveillance video there was a cashier employed by MONTEFIORE who may have seen the defect and therefore had a duty to warn patrons of the hazard.

SODEXO argues that MONTEFIORE has breached their duty and that their negligence was the sole cause of Plaintiff's injuries. Additionally, SODEXO again argues that it did not own the cooler and based upon the management contracts, it was not responsible for providing and maintaining equipment such as the subject cooler.

In regard to the contractual indemnity provision in the Management Agreement, SODEXO asserts that the indemnification clause is unambiguous and requires that each party indemnify the other for claims arising out of their own sole negligence or willful misconduct. SODEXO argues that since it cannot be found negligent and the accident arose from MONTEFIORE's negligence alone, MONTEFIORE is required to indemnify SODEXO as per their agreement.

Defendant KEURIG's Support of Defendant SODEXO's Motion for Summary Judgment (Motion Seq. No. 3)

Defendant KEURIG submitted papers in support of Defendant SODEXO's motion for summary judgment asserting that none of the Espinal exceptions are applicable and the agreement between Defendants SODEXO and MONTEFIORE supports summary judgment. According to KEURIG, Defendant MONTEFIORE has argued that the agreement between Defendants SODEXO and MONTEFIORE set forth that SODEXO was not required to maintain the subject cooler and instead the responsibility belonged to MONTEFIORE. Further, KEURIG contends that it was only the approved supplier of products, including beverages, pursuant to an agreement between themselves and SODEXO, and that agreement to supply beverages did not create an obligation to maintain or repair the cooler. Additionally, KEURIG avers that not only did it not have a contractual duty to repair the subject cooler but also it did not have a common law duty to repair or maintain the cooler.

In their second argument Defendant KEURIG concurs with SODEXO that although neither party owed Plaintiff a duty of care and is not required to establish a lack of notice, the surveillance video demonstrates that the cooler was functioning normally and had no issues until it was broken by an unidentified MONTEFIORE employee one (1) minute prior to the subject accident. As such, Defendant KEURIG endorses SODEXO's argument in support of summary judgment that there were no actual or constructive notice and no reasonable time to repair the cooler before Plaintiff's accident.

Plaintiff's Opposition to Defendant SODEXO's Motion for Summary Judgment (Motion Seq. No. 3)

In opposition Plaintiff contends that Defendant SODEXO's motion should be denied due to the deficiencies of Defendant's arguments as to the documentation of the last inspection and the conduct during those inspections.

First, Plaintiff notes that Defendant SODEXO's motion should be denied since it has failed to provide records demonstrating when the cooler's hinges were last inspected, as required by prevailing appellate case law, and instead improperly relies on general practices. Plaintiff asserts that the explanation of SODEXO's general practice of checking the subject cooler's temperature along with documentation of that information is not sufficient to satisfy their prima facie showing of when and how the cooler was last inspected before the subject accident.

Additionally, the Plaintiff asserts that the temperature checks conducted by SODEXO's employees were not inspections as contemplated by the case law, and even if they are considered inspections, they demonstrate constructive notice. The Plaintiff relies on the testimony of SODEXO's general manager that the SODEXO staff opened the cooler at 6:30 a.m. on the morning of the accident and it had a duty to observe and correct the hinge defect.

Next, Plaintiff argues that res ipsa loquitor is directly applicable in this matter since failures such as a cooler door falling off its hinges do not occur absent negligence. Referencing the doctrine, the Plaintiff asserts that the following three prongs have been satisfied in this action: (1) that the event is of a kind that ordinarily does not occur absent negligence, (2) that the instrumentality causing the event was within the defendant's control and (3) that the event was not due to plaintiff's voluntary act or contribution.

As to the first prong, the Plaintiff asserts that the instant broken cooler door hinge is similar to circumstances such as when a door falls off its hinges, a chair collapses under ordinary use, and tires detach from a vehicle, situations to which courts have applied the doctrine of res ipsa loquitor. Plaintiff contends that her conduct eliminates contributory fault as she testified that she merely opened the cooler door as she had done with no issues hundreds of times before and there is no evidence presented of misuse. Additionally, Plaintiff avers that Defendant SODEXO's alternative explanation, that an unidentified patron slammed the cooler door just before she opened the door, is based solely on speculation and conjecture. Plaintiff asserts that the surveillance video does not demonstrate that the unidentified patron slammed the door and instead confirms that the hinge of the cooler failed and struck Plaintiff at the time she opened the door. The Plaintiff also argues that for the inference of res ipsa loquitor to be applied, she is not required to eliminate every speculative cause of an accident and instead is only required to demonstrate that the occurrence is one that does not occur absent negligence.

Turning to the second prong, the Plaintiff contends that absolute ownership is not required to establish exclusive control for application of the doctrine of res ipsa loquitor. Rather, Plaintiff asserts that "functional control," which is the practical authority and responsibility over the instrumentality is what must be considered in applying the doctrine of res ipsa loquitor. Plaintiff argues that SODEXO had "functional control" over the subject cooler. Also, Plaintiff argues that based upon testimony by MONTEFIORE's retail manager, SODEXO had "functional control" over the cooler since it was removed when SODEXO's contract with MONTEFIORE ended due to the fact that Snapple was supplied by SODEXO's vendors, not MONTEFIORE's vendors. Further, Plaintiff asserts that the management agreement between SODEXO and MONTEFIORE confirms the relationship with Snapple. Additionally, Plaintiff avers that "functional control" of the cooler was demonstrated through SODEXO's general manager's testimony when he stated that his staff opened and closed the Snapple cooler door daily to check the temperature in the cooler and also that SODEXO was responsible for arranging repairs to the cooler. Finally, Plaintiff maintains that the inclusion of the vendor indemnification and insurance requirements within the supply agreement demonstrates that SODEXO anticipated liability and the possibility of bearing legal responsibility.

As to the third prong of the doctrine of res ipsa loquitor, the Plaintiff argues that the accident was not caused by any voluntary act of hers, and her conduct did not contribute to the accident. Plaintiff contends that on the date of the accident she opened the Snapple cooler door, as she had hundreds of times prior without incident. Further, Plaintiff asserts that the mere opening of the cooler door does not render the accident her fault. Plaintiff also argues that no evidence has been presented of misuse by the Plaintiff that contributed to the subject accident.

In an additional argument, Plaintiff contends that the surveillance video of the subject accident fails to support SODEXO's argument for summary judgment as it is inconclusive. According to the Plaintiff the video surveillance does not depict the defect or a clear absence of negligence and therefore cannot be relied upon in support of SODEXO's motion for summary judgment. Plaintiff argues that since the video footage does not definitively establish the conditions of the cooler at the time of the accident it cannot be relied upon to exculpate SODEXO.

Plaintiff's Opposition to Defendant KEURIG's support of Defendant SODEXO's Motion for Summary Judgment (Motion Seq. No. 3)

Plaintiff opposes Defendant KEURIG's support of SODEXO's motion for summary judgment based upon KEURIG's "inserted arguments" that SODEXO lacked control or responsibility for the subject cooler. First, Plaintiff contends that the argument is raised without an affidavit from a witness with knowledge and is contradicted by the depositions of the witnesses who testified for MONTEFIORE and SODEXO. Plaintiff notes the deposition testimony demonstrated that the subject cooler was a unit owned by Defendant KEURIG and was placed by SODEXO in MONTEFIORE's cafeteria as part of SODEXO's beverage program and supply contract.

Plaintiff concedes that she has no current claim against Defendant KEURIG, as her negligence claim was brought against SODEXO, who operated MONTEFIORE's cafeteria, and SODEXO impleaded KEURIG. According to Plaintiff the deposition testimony revealed that SODEXO controlled the subject cooler supplied by KEURIG, and that the subject Snapple cooler was removed from the MONTEFIORE cafeteria after SODEXO left MONTEFIORE because the cooler was supplied by the vendor, and not hospital property, and that the coolers were provided by vendors under SODEXO's management. Plaintiff contends that the aforementioned testimony demonstrates two facts that are not in dispute: (1) that the cooler was a KEURIG/Snapple unit, which was not owned by MONTEFIORE and (2) that SODEXO placed and operated the unit pursuant to its food service management agreement.

In addition, Plaintiff opposes KEURIG's arguments as to their motion for summary judgment based upon res ipsa loquitor, noting that SODEXO and KEURIG both misstate that the event was a falling door rather than a failure of the hinge mechanism. Plaintiff contends that the distinction is important as New York courts have consistently held that mechanical door and hinge failures fall within the doctrine of res ipsa loquitor since these types of failures do not occur absent negligence. Plaintiff reiterates their prior arguments in support of their application of the res ispa loquitor doctrine.

Defendant MONTEFIORE's Opposition to SODEXO's Motion for Summary Judgment (Motion Seq. No. 3)

In opposition to SODEXO's motion for summary judgment Defendant MONTEFIORE asserts that the motion should be denied since there is a genuine question of material fact as to the following: (1) that MONTEFIORE's negligence contributed to the causation of the accident; (2) that SODEXO was free from negligence; (3) that SODEXO owed a duty to maintain the subject cooler; and (4) that SODEXO's breach of their maintenance duty caused Plaintiff's injuries.

Defendant MONTEFIORE asserts that the surveillance video relied upon by SODEXO does not clearly identify the unidentified patron as an employee of MONTEFIORE and Plaintiff also couldn't after being shown the video. Defendant MONTEFIORE notes that during the second deposition of Plaintiff she was shown the video surveillance, and she could not identify the person using the cooler a minute or so before her as an employee of MONTEFIORE. Therefore, MONTEFIORE contends that SODEXO's assertion that MONTEFIORE was negligent based upon an unknown MONTEFIORE employee forcibly slamming the cooler door just before Plaintiff's accident is not supported by the deposition testimony or the video surveillance, as there is no testimony in the record identifying the person in the video as an employee of MONTEFIORE.

Next, Defendant MONTEFIORE argues that based upon the deposition of SODEXO's general manager, his job description included overseeing the operation of food service at Nyack Hospital which included overseeing the public service area in the MONTEFIORE cafeteria. Referring to the general manager's testimony, MONTEFIORE asserts that SODEXO's manager's duties included opening a work order with MONTEFIORE for them to fix any broken or damaged equipment he or his staff observed and if MONTEFIORE was unavailable to fix the equipment, then it had to contact the vendor that was related to the unit. Further, MONTEFIORE avers that SODEXO's general manager testified that he was responsible for the daily safety check, and that one was performed on the subject cooler earlier on the day of the accident and that no issues with the equipment were reported. Based upon the general manager's testimony, Defendant MONTEFIORE argues there has been no breach of any duty owed to either the Plaintiff or SODEXO.

Defendant MONTEFIORE also contends that SODEXO is not entitled to summary judgment on its claims against MONTEFIORE for contractual indemnification since SODEXO has failed to show that the Plaintiff's injuries were solely caused by the negligence of MONTEFIORE. MONTEFIORE asserts that its agreement with SODEXO only requires indemnification, contractual or common-law, if the claim arises from the sole negligence or willful misconduct of the indemnifying party and the evidence before the Court is insufficient to demonstrate that negligence by MONTEFIORE solely caused Plaintiff's injuries.

Defendant SODEXO's Reply to Plaintiff's Opposition to Motion for Summary Judgment (Motion Seq. No. 3)

In reply Defendant SODEXO reiterates its prior argument that it owed no duty to Plaintiff as to the subject cooler and that it therefore did not breach any duty to Plaintiff. SODEXO also again asserts that the contractual obligations set forth in the agreements alone do not give rise to tort liability and that it was not contractually obligated to maintain or repair the subject cooler. Further, SODEXO contends that the case law relied upon by Plaintiff is inapplicable to the facts in this matter since the defendants in those cases had an undisputed duty or obligation to maintain and inspect for recurring hazards, a duty SODEXO argues it did not have. Additionally, Plaintiff argues that the doctrine of res ipsa loquitor is inapplicable to the instant action since SODEXO had no duty and it lacked exclusive control of the subject cooler.

Plaintiff's Motion for Summary Judgment (Motion Seq. No. 4)

Plaintiff's arguments in support of Motion for Summary Judgment (Motion Seq. No. 4)

In support of her motion, Plaintiff asserts that summary judgment should be granted to her based upon the doctrine of res ipsa loquitor as this matter is a "rare and exceptional" case where the proof of negligence is overwhelming, and the Defendants arguments are weak. Plaintiff asserts that the facts of the instant matter are similar to a case in which a tire detached from a vehicle. Specifically, Plaintiff testified that, for years, she used the cooler safely and without incident. Further, Plaintiff argues that the surveillance video confirms the cooler door was functioning until it catastrophically fell when Plaintiff opened the door. Additionally, Plaintiff asserts SODEXO's argument that the damage was caused by the patron who opened the cooler door before Plaintiff is speculative and not supported by any evidence in the record. Based upon these arguments, Plaintiff avers that this case is "rare and exceptional" which implores the inference of negligence.

Defendant SODEXO's Opposition to Plaintiff's Motion for Summary Judgment (Motion Seq. No. 4)

In opposition SODEXO mainly asserts the same arguments in opposition to Plaintiff's motion for summary judgment that were raised in support of SODEXO's motion for summary judgment. SODEXO also argues that the Plaintiff's reliance on res ipsa loquitor is misplaced as the doctrine does not apply to the instant action. According to SODEXO, before application of the doctrine of res ipsa loquitor, the Plaintiff must first show the Defendant had a duty in relation to the instrumentality of harm; here that SODEXO had a duty to inspect, repair, or maintain the subject cooler. SODEXO argues that since it has demonstrated no duty exists on its part, the doctrine of res ipsa loquitor cannot be raised by Plaintiff in support of summary judgment.Additionally, Defendant SODEXO asserts that res ipsa loquitor is inapplicable as the Plaintiff has failed to demonstrate that subject cooler was within its exclusive control and summary judgment should not be granted based upon the doctrine since the Plaintiff has not met the "rare and exceptional" standard.

Defendant KEURIG's Opposition to Plaintiff's Motion for Summary Judgment (Motion Seq. No. 4)

In opposition SODEXO mainly asserts the same arguments in opposition to Plaintiff's motion for summary judgment that were raised in support of SODEXO's motion for summary judgment. In regard to Plaintiff's motion for summary judgment based upon the doctrine of res ipsa loquitor, Defendant KEURIG contends that the three prongs of the res ipsa loquitor theory have not been met by Plaintiff. Specifically, Defendant KEURIG avers that Plaintiff has not established that the subject cooler was within Defendant's control, as it was in possession of Defendant MONTEFIORE on its premises and used by its employees.

Plaintiff's reply to Defendants SODEXO and KEURIG's Opposition to Plaintiff's Motion for Summary Judgment (Motion Seq. No.4)

In reply Plaintiff reiterates the previously raised arguments both in support of its motion for summary judgment and in opposition to Defendant SODEXO's motion for summary judgment. Plaintiff also contends that Defendant SODEXO misstates the holding in Dermatossian and based upon that mistake, incorrectly argues that public access to the subject Snapple cooler defeats the res ipsa loquitor doctrine and also fails to address other binding case law from the Second Department. Further, Plaintiff argues that both SODEXO and KEURIG improperly argue that the failure the Plaintiff is seeking to apply the doctrine of res ipsa loquitor to is the door, when in fact the issue is the failure of the hinge mechanism. The Plaintiff contends this distinction is important as New York Courts have consistently held that mechanical door and hinge failures fall within the doctrine of res ipsa loquitor.

In reply to Defendant KEURIG's opposition, the Plaintiff first notes that she has no direct claim against KEURIG and take no position as to the argued contractual indemnity issues between KEURIG and SODEXO. However, Plaintiff states that she interposed a reply since Defendant KEURIG inserted arguments on behalf of Defendant SODEXO arguing in support of SODEXO's lack of control or responsibility for the subject cooler, an argument that the Plaintiff avers is contrary to the evidence in this matter. Also, Plaintiff asserts that KEURIG submission solely consists of an attorney affirmation, which is unsupported by an affidavit of a KEURIG employee with personal knowledge and therefore should be disregarded by the Court.

ANALYSIS/LAW

Motions for Summary Judgment in General

The Court's role on a motion for summary judgment is one of issue finding rather than issue determination. See Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Summary judgment is a drastic remedy that should not be granted when there is doubt as to the existence of a triable issue of fact. See Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). The movant on a summary judgment motion must come forward with evidentiary proof in admissible form that is sufficient for the court to direct judgment in its favour as a matter of law. See Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).

The proponent of a summary judgment motion must establish that his or her claim or defense is sufficient to warrant a court directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the lack of material issues of fact. See Giuffrida v. Citibank Corp., et al., 100 NY2d 72 (2003), citing Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). The failure to do so requires a denial of the motion without regard to the sufficiency of the opposing papers. See Lacagnino v. Gonzalez, 306 AD2d 250 (2d Dept 2003). However, once such a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form demonstrating material questions of fact requiring trial. See Gonzalez v. 98 Mag Leasing Corp., 95 NY2d 124 (2000), citing Alvarez, supra, and Winegrad v. New York Univ. Med. Center, 64 NY2d 851 (1985). Mere conclusions or unsubstantiated allegations unsupported by competent evidence are insufficient to raise a triable issue. See Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966 (1988); See also Zuckerman v. City of New York, 49 NY2d 557 (1980). Where material issues of fact exist that cannot be resolved on the papers filed in support of and in opposition to summary judgement, the motion must be denied. See Matter of Suffolk County Department of Social Services v. Jams M., 83 NY2d 178 (1993).

Defendant SODEXO's Motion for Summary Judgment (Motion Seq. No. 3) as to Plaintiff's Complaint

Under the common law, a property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition. See Kellman v 45 Tiemann Assoc., Inc., 87 NY2d 871, 872 (1995); Basso v. Miller, 40 NY2d 233 (1976). In moving for summary judgment, a defendant has the burden of establishing prima facie that it did not create the alleged dangerous condition or have actual or constructive notice of it. See Buffalino v XSport Fitness, 202 AD3d 902, 902-903 (2d Dept 2022); See also Saunders v Nostrand 1543, LLC, 230 AD3d 1261 (2d Dept 2024). "Generally, the issue of whether a dangerous condition exists depends on the particular facts of each case, and is properly a question of fact for the jury." Guidone v Town of Hempstead, 94 AD3d 1054, 1055 (2d Dept 2012) citing Trincere v County of Suffolk, 90 NY2d 976 (1997). A defendant has constructive notice of a dangerous or defective condition when it is visible and apparent and has existed for a sufficient length of time to afford a defendant a reasonable opportunity to discover and remedy it. See Gordon v American Museum of Natural History, 67 NY2d 836, 837-838 (1986); See also Butts v SJF, LLC, 171 AD3d 688, 689 (2d Dept 2019).

"To meet its initial burden on the issue of lack of constructive notice of an alleged defective condition, a defendant must offer evidence as to when the subject area was last inspected relative to the time when the incident occurred." Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598-599 (2d Dept 2008); See Buffalino v XSport Fitness, 202 AD3d at 903; Fortune v Western Beef, Inc., 178 AD3d 671 (2d Dept 2019). Further, "[m]ere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice." Herman v Lifeplex, LLC, 106 AD3d 1050, 1051 (2d Dept 2013); See Hegeman v City of Newburgh, 208 AD3d 461 (2d Dept 2022); See also Armenta v AAC Cross County Mall, LLC, 219 AD3d 790 (2d Dept 2023).

"As a general rule, liability for a dangerous or defective condition on property is predicated upon ownership, occupancy, control, or special use of the property." Figueroa-Corser v Town of Cortlandt, 107 AD3d 755, 757-758 (2d Dept 2013); See Khanimov v McDonald's Corp., 121 AD3d 1050 (2d Dept 2014); Toner v Trader Joe's E., Inc., 209 AD3d 690 (2d Dept 2022). "The existence of one or more of these elements is sufficient to give rise to a duty of care." Micek v Greek Orthodox Church of Our Savior, 139 AD3d 830, 831 (2d Dept 2016); See Donatien v Long Is. Coll. Hosp., 153 AD3d 600 (2d Dept 2017); Tilford v Greenburgh Hous. Auth, 170 AD3d 1233 (2d Dept 2019).

Next, New York Courts have consistently held that "ordinarily [a] breach of a contractual obligation will not be sufficient in and of itself to impose tort liability to noncontracting third parties upon the promisor." Church ex rel. Smith v Callanan Industries, Inc., 99 NY2d 104, 111 (2002). Nevertheless, the Court of Appeals noted in Espinal v. Melville Snow Contrs., that there are three (3) exceptions to the general rule that allow the finding of liability. Specifically, "in Espinal v Melville Snow Contrs., the Court of Appeals identified three situations where a party who enters into a contract to render services may be said to have assumed a duty of care and thus be potentially liable in tort to third persons; (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties, launches an instrument of harm or creates or exacerbates a hazardous condition, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely [ ]." Gushin v Whispering Hills Condominium I, 96 AD3d 721, 722 (2d Dept 2012) (citing Espinal v Melville Snow Contrs., 98 NY2d 136, 140 (2002)).

Here, Defendant SODEXO has failed to establish prima facie entitlement to judgment in their favor as a matter of law as to liability. The only evidence provided is the deposition testimony of SODEXO's employees as to the inspection procedures that were conducted under the Management Agreement between SODEXO and MONTEFIORE prior to July 20, 2023. The deposition testimony of the SODEXO employees demonstrates that any inspection of the subject cooler that was conducted was merely as to the cooler temperatures and the SODEXO employees never looked at the safety and structure of the subject cooler or its door, or any other of the kitchen or cafeteria equipment. SODEXO's argument that inspection of the structural integrity of the equipment was the responsibility of MONTEFIORE based upon the Management Agreement between them is also unavailing.

Defendant SODEXO provides the Management Agreement between itself and MONTEFIORE along with their employees' deposition testimony in support of their argument that inspection of the equipment was not their responsibility pursuant to the Agreement. The Management Agreement between MONTEFIORE and SODEXO dated December 17, 2019, provides that MONTEFIORE, as the "client" was to provide equipment for the cafeteria and replace work or inoperable equipment, maintenance and repairs but is silent as to how MONTEFIORE was to become aware of the necessity of maintenance or repair of the kitchen and cafeteria equipment. See NYSCEF Doc. No. 57, p 16, ¶ 3.1. However, the deposition testimony of Defendant SODEXO's general manager, Jose A. De Jesus Emmanuelli, addresses SODEXO's role in the daily "inspection" of the kitchen and cafeteria for the purpose of assessing the safety of the equipment and to notify MONTEFIORE of the necessity to make repairs.

In his deposition, Emmanuelli testified that he oversaw the operation of patient service care consistent with SODEXO's contract with Defendant MONTEFIORE. SODEXO's retail manager, Lisbet Nunez, managed the cafeteria and in this vein, she worked with Nunez. See NYSCEF Doc. No. 54, p. 18. Emmanuelli testified that he worked exclusively in the cafeteria performing "walkthroughs" and performing checks of the kitchen equipment two (2) to three (3) days a week until July 17, 2023, when MONTEFIORE hired their own retail manager. See NYSCEF Doc. No. 54, p. 23, Emmanuelli testified that he did these "walkthroughs" in the cafeteria three times a day, morning, lunch and before he left for the day mainly looking for cleanliness, but he also did "verify the equipment," safety and "the standards of safety and sanitation." See NYSCEF Doc. No. 54, p. 23-24. He testified further that during the walkthroughs the "units" temperatures were checked to ensure proper temperatures to operate and the "safety" checks he conducted were regarding food operation, i.e. to ensure no cross-contamination of food, no chemicals in the food area, and to verify the employees' working areas were compliant with the safety standards from the state Joint Commission of the hospital. See NYSCEF Doc. No. 54, p. 31. Emmanuelli testified that the twice daily "walkthroughs" included the opening of the coolers to verify the thermometer temperature inside the coolers which involved opening the cooler door and verifying the thermometer inside the cooler. See NYSCEF Doc. No. 54, p. 31.

As to the specific date of the subject accident, Emmanuelli testified that he was no longer performing "walkthroughs" and at that time SODEXO Retail Manager, Nunez, was in the cafeteria two (2) to three (3) days a week assisting with the transition between SODEXO and MONTEFIORE. See NYSCEF Doc. No. 54, ps. 26, 28. According to Emmanuelli, in the beginning of July 2023 he was "randomly" performing walkthroughs of the cafeteria, but he did not conduct a morning walkthrough on July 20, 2023, since he was "off" that day and instead it was done by the operation and retail manager from MONTEFIORE. See NYSCEF Doc. No. 54, p. 28-29.

If a SODEXO employee observed a problem with a piece of equipment during the "walkthroughs" -- including an issue with a cooler door -- the protocol, in July 2023, to address the issue would be for "[t]he manager [to] reopen a work order with the hospital so the equipment would be checked. If they are not available to fix the equipment, we [SODEXO]¹ have to contact any vendor related to that unit." See NYSCEF DOC. No. 54, p. 38, lines 14-18.

Emmanuelli indicated that during the transition period MONTEFIORE and SODEXO employees were working together with SODEXO employees supporting the new MONTEFIORE employees. See NYSCEF Doc. No. 54, p. 33-34. Specifically, Emmanuelli testified that as of July 2023, MONTEFIORE had hired an Operation Manager and Retail Manager who were conducting the temperature checks inside the coolers daily. See NYSCEF Doc. No. 54, p. 32-33.Emmanuelli also testified that despite the "transition," SODEXO employees were still operating under the contract between themselves and MONTEFIORE and performing "their duties" until the contract ended on August 7, 2023, including addressing any safety concerns observed as to any equipment in the cafeteria. See NYSCEF Doc. No. 54, p. 34-35.

Carlton Monchery testified that he was hired in June 2023 as a per diem employee of MONTEFIORE and became the full-time employee Operation Manager of the cafeteria on July 30, 2023, ten (10) days after the subject accident. See NYSCEF Doc. No. 55, p. 8.According to Monchery, in July 2023, part of his duties included "safety walkthroughs" of the cafeteria which included, inter alia, looking at the equipment, such as the subject cooler, and preventative maintenance. See NYSCEF Doc. No. 55, p. 9. Monchery continued that in July 2023, at the time of the subject accident, he and the other MONTEFIORE employee were taking over from the "SODEXO team" and they "didn't oversee any of those operations [the walkthroughs] until Sodexo left the account" in August 2023. See NYSCEF Doc. No. 55, p. 11. Further, Monchery clarified that in July 2023 "[a]ll operations of the kitchen was maintained by Sodexo until they departed." See NYSCEF Doc. No. 55, p. 11. Additionally, Monchery testified he did not know how the employees from SODEXO conducted their "safety walkthroughs," the documentation or the process of their "walkthroughs" or how they maintained the equipment. See NYSCEF Doc. No. 55, p.12, 26. As to July 20, 2023, Monchery testified that based upon his personal knowledge there were no issues with the Snapple cooler door on that date. See NYSCEF Doc. No. 55 p. 19. Monchery also contradicted Emmanuelli's testimony that SODEXO employees were not training the MONTEFIORE employees during the transition period in July 2023. See NYSCEF Doc. No. 55, p. 24-25.

According to the testimony of Monchery, the Snapple cooler continues to be in the MONTEFIORE cafeteria despite the cessation of the agreement between MONTEFIORE and SODEXO. See NYSCEF Doc. No. 55, p. 23. Monchery noted that the subject Snapple cooler was repaired after the Plaintiff's accident, and he recalled the Snapple vendor replaced the hinges. See NYSCEF Doc. No. 55, p. 27. Moncher was unaware who contacted the vendor and sought the repair of the hinges after the accident. See NYSCEF Doc. No. 55, p.27.

The testimony in the depositions referenced by Defendant SODEXO do not demonstrate that they conducted regular inspections of the structure and physical condition of the vendor's equipment that they provided to Defendant MONTEFIORE under the Management Agreement and as part of SODEXO's Supply Agreement with Third-Party Defendant KEURIG. Further, neither the Management Agreement between MONTEFIORE and SODEXO nor the Supply Agreement between SODEXO and Third-Party Defendant KEURIG contemplate the inspection of either the kitchen or cafeteria equipment as to their structural or physical condition.

The testimony of SODEXO's on-site manager contradicts the arguments made by SODEXO that they were uninvolved in the inspection of the equipment within the MONTEFIORE cafeteria. In fact, the testimony illuminates the ambiguous and vague areas of the Management Agreement and the Supply Agreements which do not clearly delineate the maintenance responsibilities for the equipment provided by SODEXO. Further, MONTEFIORE employee Monchery did not verify the procedures as to Defendant SODEXO in his deposition testimony but noted that until SODEXO's contract ended in August 2023 they were responsible for operations which included "safety concerns." See NYSCEF Doc. No. 55, p. 24.

The deposition testimony of Emmanuelli provides clarity to the void within the Management and Supply Agreements as to how maintenance of the kitchen and cafeteria equipment was addressed in contrast to SODEXO's assertion that the "contracts place the duty to repair and maintenance squarely with Montefiore or KDP . . . ." As such, there is a question of fact as to whether SODEXO owed Plaintiff a duty of care as to the subject cooler. The inconsistencies between the testimony and the agreements demonstrate questions of fact that prevent this Court from granting summary judgment.

Next, considering the factors under Espinal v Melville Snow Centers, the Court notes that there is also a question of fact as to whether SODEXO displaced MONTEFIORE's duty to maintain the cafeteria. Emmanuelli's testimony clearly indicates that, at the time of the subject accident, MONTEFIORE was transitioning out of their management contract with SODEXO but SODEXO's employees were still working at the cafeteria and engaging in their contractual duties, which included inspections of the equipment within the kitchen and cafeteria and notification to MONTEFIORE if repairs were needed to equipment. In addition, Emmanuelli's testimony that the employees of MONTEFIORE and SODEXO were working together in conducting the contractual duties and SODEXO employees were assisting/training the newly hired MONTEFIORE employees is contradicted by the testimony of Monchery, MONTEFIORE's per diem Operations Manager. The conflicting testimony also raises a question of fact such that Defendant SODEXO's motion for summary judgment must be denied.

Finally, the Court finds the argument that a MONTEFIORE employee, who was a cafeteria patron, created the defective condition to be speculative. Defendant SODEXO's argument is based upon the surveillance video of the cafeteria which purports to demonstrate a MONTEFIORE employee slamming the subject cooler door and breaking the door hinge. The Court has reviewed the surveillance video and finds that the frame is not close enough to see the condition of the cooler hinges prior to the incident.

The camera is set at a distance from the cooler and solely reflects the front and right side of the cooler and there is no glaring defect that the Court can observe from the video. Further, there is no specific action or time on the video in which the Court can with certainty confirm the patron damaged the door. In the video, the patron does appear to look up to her right after closing the door, but the Court would be engaging in pure speculation by assuming that the unidentified (and never deposed) patron observed a defect with the hinge such that that she broke the door or she had knowledge that the door would strike the Plaintiff in the head upon opening less than a minute later.

Defendant SODEXO has failed to meet its prima facie burden and its motion for summary judgment (Motion Seq. No. 3) is denied in its entirety. Since Defendant SODEXO failed to establish prima facie entitlement to judgment as a matter of law, the Court need not consider the sufficiency of Plaintiff's opposition papers. See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Nonetheless, even if Defendant SODEXO had satisfied their prima facie burden questions of fact exist that prevent the Court from granting Defendant's motion for summary judgment.

Defendant SODEXO's Motion for Summary Judgment (Motion Seq. No. 3) dismissing any and all crossclaims asserted by MONTEFIORE NYACK HOSPITAL as against SODEXO OPERATIONS, LLC and granting the third-party claims of SODEXO OPERATIONS, LLC for contractual and common law indemnification and contribution against MONTEFIORE NYACK HOSPITAL

"A party's right to contractual indemnification depends upon the specific language of the relevant contract." Feliz v Citnalta Constr. Corp., 217 AD3d 750, 752 (2d Dept 2023) quoting Keller v Rippowam Cisqua Sch., 208 AD3d 654, 655 (2d Dept 2022) quoting Gurewitz v City of New York, 175 Add 658, 664 (2d Dept 2019). "The promise to indemnify should not be found unless sit can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances." Khan v 40 Wall Ltd. Partnership, 205 AD3d 789, 791 (2d Dept 2022) quoting Goodlow v 724 Fifth Ave. Realty, LLC., 127 AD3d 1138, 1140 (2d Dept 2015).

Here, the management agreement between Defendant SODEXO and MONTEFIORE provided that the each party "shall defend, indemnify and hold each other harmless from and against all claims, liabilities, losses and expenses, including reasonable costs, collection expenses, attorneys' fees and court costs, which may arise because of the sole negligence or willful misconduct of the indemnifying Party, its agents or employees in the performance of its obligations under this Agreement." See NYSCEF Doc. No. 57, Section 6.5(a). As there has not been a determination as to negligence, the branch of Defendant SODEXO's motion for summary judgment dismissing MONTEFIORE's crossclaims and granting SODEXO's third-party claims for contractual and common law indemnification and contribution would be premature. See Quintero v 240 Crossways Park Owner, LLC, 241 AD3d 842, 844 (2d Dept 2025); See also Tingling v C.I.N.H.R., Inc., 120 AD3d 570, 571-572 (2d Dept 2014).

"The principle of common-law or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party." Bellefleur v Newark Beth Israel Medical Center, 66 AD3d 807, 808 (2d Dept 2009). To establish a claim for common-law indemnification, the indemnitee is "required to prove not only that they were not negligent, but also that the proposed indemnitor was responsible for the negligence that contributed to the accident or, in the absence of any negligence, had the authority to direct, supervise, and control the work giving rise to the injury." Benedetto v Carrera Realty Corp., 32 AD3d 874, 875 (2d Dept 2006); See Markowitz v 420 Kent Avenue, LLC, 248 NYS3d 671, 674 (2d Dept 2026); See also Cando v Ajay Gen. Contr. Co. Inc., 200 AD3d 750, 752 (2d Dept 2021); Mohan v Atlantic Ct., LLC, 134 AD3d 1075, 1078-1079 (2d Dept 2015).

Here, questions of fact exist as to the liability and negligence of SODEXO and MONTEFIORE based upon the deposition testimony -- which provides conflicting accounts of each party's responsibilities as to inspection of the kitchen and cafeteria equipment in the MONTEFIORE cafeteria. See Shaughnessey v Huntington Hosp., Assn., 147 Add 994, 9999 (2d Dept 2017). Therefore, summary judgment dismissing MONTEFIORE's crossclaims and summary judgment granting SOEXO's third-party claims are premature absent proof, as a matter of law, which party was negligent or had authority to direct, supervise, and control the subject cooler and inspection of same. See Perri v Gilbert Johnson Enterprises. Ltd., 14 AD3d 681, 685-686 (2d Dept 2005).

Plaintiff's Motion for Summary Judgment (Motion Seq. No. 4)

"The doctrine of res ipsa loquitor permits an inference of negligence be drawn solely from the happening of an accident 'upon the theory that 'certain occurrences contain within themselves a sufficient basis for an inference of negligence." Molina v State, 46 AD3d 642, 642-643 (2d Dept 2007) quoting Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226 (1986) (internal citations excluded). In matters in which the doctrine of res ipsa loquitor is applicable "it creates a prima facie case of negligence sufficient to submit the case to the fact finder, who may, but is not required to, draw a permissible inference." Molina v State, 46 AD3d at 643. "To rely on the doctrine of res ipsa loquitur, a plaintiff must demonstrate that (1) the injury is of a kind that does not occur in the absence of someone's negligence, (2) the injury is caused by an agency or instrumentality within the exclusive control of the defendants, and (3) the injury is not due to any voluntary action on the part of the injured plaintiff." Simmons v Neuman, 50 AD3d 666, 667 (2d Dept 2008) citing Morejon v. Rais Constr. Co., 7 NY3d 203, 209 (2006); See Bicchetti v Toyota, 217 AD3d 743 (2d Dept 2023); See also Corcoran v Banner Super Mkt., 19 NY2d 425, 430 (1967). "Once the plaintiff satisfies the burden of proof on these three elements, the doctrine of res ipsa loquitor permits the factfinder to infer negligence." Bicchetti v Toyota, 217 AD3d at 744.

As to the second element, exclusive control, it is "not a rigid rule and has been applied in circumstances when 'the accident occurred after the instrumentality left the defendant's control, where it was shown that the defendant had exclusive control at the time of the alleged act of negligence." Dermatossian v New York City Tr. Auth., 67 NY2d at 227. In addition "[t]he plaintiff does not need to eliminate all other causes, but rather, must show that their likelihood is reduced so that the defendants' conduct is more probably the cause." Bichetti v Toyota, 217 AD3d at 744. "The plaintiff must show that the defendant's control was sufficiently exclusive to fairly rule out some other agency causing the purported defect." Id. citing Bonventure v Max, 229 AD2d 557.

The Appellate Division, Second Department noted in Simmons that because the res ipsa loquitor doctrine is based upon circumstantial evidence which allows, but does not require, a fact finder to infer a defendant's negligence the doctrine does not automatically entitle a plaintiff to summary judgment. See id. Rather, the Simmons Court reaffirmed that the res ipsa loquitor doctrine should be used only in the rarest of cases when a plaintiff's proof is so convincing and defendant's response to the proof is so weak that the "inference of defendant's negligence is inescapable." Id. (quoting Morejon v. Rais Constr. Co., 7 NY3d at 209_.

Here, the Plaintiff reasons that doors do not "just fall off" without some reason or negligence. She alleges that the accident was caused by the Snapple cooler door that was in the exclusive control of the Defendants and that her conduct did not cause the accident.

The Court notes that the surveillance footage demonstrates that the Plaintiff approached the closed Snapple cooler door, opened the door and the door fell -- striking her head and shoulder. There is nothing observable in the Plaintiff's manner or actions -- as seen on the surveillance video -- that demonstrate that she jerked the Snapple cooler door, that she forcefully grabbed at the handle or engaged the door in a manner that would have caused it to fall off its hinges. Further, the Court also finds this type of injury is not one that occurs in the absence of someone's negligence. See Kambat v St. Francis Hospital, 89 NY2d 489, 494 (1997).

However, as to the second factor, the Court finds that since the Snapple cooler was in the public facing portion of MONTEFIORE's cafeteria -- it was not in the Defendants' exclusive control and the public had "unfettered access" to the cafeteria including the cooler. See Sinto v City of Long Beach, 290 AD2d 550, 550-551 (2d Dept 2002). Specifically, not only were staff and employees of MONTEFIORE (those working in the cafeteria), SODEXO and KEURIG opening and closing the cooler door regularly, but so were members of the public including visitors to the hospital and employees of MONTEFIORE not working in the cafeteria. See Thompson v Pizza Hut of America, Inc., 262 AD3d 302 (2d Dept 1999); See also Molina v State, 46 AD3d at 643; Loiacono v Stuyvesant Bagels, Inc., 29 AD3d 537 (2d Dept 2006). Further, the evidence demonstrates that the cafeteria was open to the public for hours before Plaintiff opened the Snapple cooler door and many customers and staff of any of the three (3) Defendants opened and closed the cooler door on the date of the accident . As such, the Court finds that the doctrine of res ipsa loquitor is inapplicable here since the evidence produced -- including the deposition testimony and the surveillance footage the cafeteria -- demonstrates that the Defendants did not have exclusive control over the Snapple cooler door that fell off its hinges and struck the Plaintiff. Plaintiff's motion for summary judgment is denied in its entirety.

In arriving at this decision the Court has reviewed, evaluated, and considered all of the issues framed by these motion papers and the failure of the Court to specifically mention any particular issue in this Decision and Order does not mean that it has not been considered by the Court in light of the appropriate legal authority.

Accordingly, it is hereby

ORDERED that Defendant SODEXO's Motion for Summary Judgment (Motion Seq. No. 3) is denied in its entirety; and it is further

ORDERED that Plaintiff's Motion for Summary Judgment (Motion Seq. No. 4) is denied in its entirety; and it is further

ORDERED that the parties are directed to appear before the undersigned on APRIL 27, 2026, at 9:30 a.m. for a conference.

The foregoing constitutes the Decision and Order of this Court on Motion Seq. Nos. 3 and 4

Dated: March 27, 2026

New City, New York

HON. JOHN P. COLLINS, Jr., J.S.C.

TO:

All counsel via NYSCEF

FOOTNOTES

1.   Emmanuelli clarified that a SODEXO manager would open the work order. See NYSCEF Doc. No. 54, p. 19- 22.

John P. Collins, Jr., J.