### Bruce v Morton Williams Supermarkets, Inc. 2024 NY Slip Op 32423(U) July 15, 2024 Supreme Court, New York County Docket Number: Index No. 153933/2022 Judge: Judy H. Kim 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 07/15/2024 04:42 P~ NYSCEF DOC. NO. 26 INDEX NO. 153933/2022 RECEIVED NYSCEF: 07/15/2024 

### SUPREME COURT OF THE STATE OF NEWYORK NEWYORK COUNTY PRESENT: HON. JUDY H. KIM Justice

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ARNOLD BRUCE, Plaintiff,

- V - MORTON WILLIAMS SUPERMARKETS, INC., JOHN DOE, Defendants.

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INDEX NO. 153933/2022 MOTION DATE 06/06/2023 MOTION SEQ. NO. 001 DECISION 

### + ORDER ON MOTION 04

The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 were read on this motion to DISMISS Upon the foregoing documents, the motion by defendant Morton Williams Supermarkets, Inc. ("MortonWilliams")pursuantto CPLR321 l(a)(l) and (a)(7), to dismiss this action is granted to the limited extent that plaintiffs demand for punitive damages is dismissed as against Morton Williams, and otherwise denied. Plaintiffalleges that the Morton Williams operated a supermarket at 311 East 23rd Street, New York, New York (the "Premises") on October 9, 2021 and that that plaintiffwas lawfully at the supermarket on that date when the John Doe defendant, a security officer employedbyMorton Williams, "accostedplaintiff, physically assaultedthe [p]laintiff, illegally and forcibly handcuffed him, confined and locked plaintiffin a holding cell for several hours until his release" without
cause (NYSCEF Doc. No. 1 [Complaint at 

### ,i,i10, 14-15]). Plaintiff asserts claims for, inter alia, assault, negligence, false arrest, and false imprisonment (Id. at

### ,i,i10, 19-20). Defendantnowmoves to dismiss this action, submitting the lease for the Premisesbetween non-parties EastMidtown Plaza Housing Company, Inc., and Brown & White Markets, Inc. d/b/a

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Morton Williams Supermarket ("Brown & White") dated July 1, 1997 along with subsequent extensions and modifications (collectively, the "Lease") (NYSCEF Doc. Nos. 7-12), and an affidavit of Steven Sloan, Vice President of Brown & White, stating that Morton Williams has
never been involved with the day-to day operations ofthe supermarket at that location, or any supermarket (NYSCEF Doc. No. 13 [Sloan Aff. at 

### ,J,J5, 7, 11, 18]). Plaintiff opposes the motion, arguing that "[t]he fact that defense counsel is asking the Court to accept an affidavit from a vice president from Brown & White to describe particular attributes and operation ofdefendantMortonWilliamsis an affirmativerepresentationto the Court thatboth companies are at the veryleast, inter-related, ifnotmore" andthat discoveryis therefore necessary to determine whether Brown & White and Morton Williams are "so inter-related that they should be deemed the same company and/or united in interest in this instance" (NYSCEF Doc. No. 18 [RooneyAffirm. in Opp. at 

### ,i,i12, 14). 

### DISCUSSION Pursuant to CPLR 321 l(a)(l), "[d]ismissal is warranted only ifthe documentary evidence submittedutterlyrefutesplaintiffs factual allegations and conclusivelyestablishes a defense to the asserted claims as a matter oflaw" (Amsterdam Hosp. Group, LLC v Marshall-Alan Assoc, Inc., 120 AD3d431,433 [1stDept2014] [internal citations and quotations omitted]). "Tobeconsidered documentary" such evidence "must be unambiguous and ofundisputed authenticity" (Toribio v 575 Broadway LLC, 61 Misc 3d 1224(A) [Sup Ct, NY County 2018] [internal citations and quotations omitted]). Significantly, "[j]udicial records, mortgages, deeds and contracts constitute documentary evidence, but affidavits and deposition testimony are not considered documentary evidence" (Id. [internal citations omitted]).

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In this case, while the Leaseis documentaryevidence itestablishes onlythat defendantwas not the lessee ofpremises during the relevant periodbut does not refute plaintiff's allegation that defendant was operating the grocery store in question. To the extent Sloan asserts that Morton Williams has never operated grocery stores, his affidavit is "not documentary evidence within the intendment ofa 

### CPLR 3211(a)(l) motion to dismiss" and cannot be credited (Fontanetta v Doe, 73 AD3d 78, 86 [2d Dept 201

### O] [internal quotations omitted]). Since, without Sloan's affidavit it "cannotbe concludedthat [d]efendants are notproperlynamed as parties inthe instant complaint," the motion to dismiss the complaintmustbe denied1 (See Peczek v 2 World Trade Ctr. LLC, 2014 NY Slip Op 31202[U] [Sup Ct, NY County 2014] citing Flowers v 73rd Townhouse LLC, 99 AD3d431 [lstDept2012]). That branch of Morton Williams' motion which seeks to strike plaintiff's demand for punitive damages against it is granted, however. An employer will be held vicariously liable for the intentional wrongdoing ofits employees, such that punitive damages are warranted, onlywheremanagementhas authorized, participatedin, consentedto orratifiedthe conduct giving rise to such damages, or deliberately retained the unfit servant, or the wrong was in pursuance ofa recognized business system ofthe entity. Stated otherwise, employer liability for punitive damages can result onlywhen a superior officer [ofthe employer] in the course of employment orders, participates in, or ratifies outrageous conduct with the term "superior officer" being restricted to personsholding ahigh level ofgeneralmanagerial authorityinrelationto thenature and operation ofthe employer's business (1Mott St., Inc. v ConEdison, 33 AD3d531, 532 [1stDept2006] [internal citations and quotations omitted]). It is undisputed that plaintiffs complaint does not include facts satisfying these requirements. Indeed, plaintiff concedes that he does not, at this juncture, have information supporting such allegations. Accordingly, plaintiff's demand for punitive damages as against

1 After discovery, these submissions would, ifundisputed, establishMortonWilliams' entitlement to summary judgment (See Charest v K Mart ofN.Y. Holdings, Inc.. 71 AD3d 471 [1st Dept 2010]).

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### Morton Williams is stricken, without prejudice to plaintiff moving for leave to amend his complaint to include an ad damnum demand for punitive damages against Morton Williams, if evidence to support such a demand is produced during discovery. Accordingly, it is ORDERED 

### that defendant's motion to dismiss is granted to the limited extent that plaintiffs demand for punitive damages as against Morton Williams is stricken, and is otherwise denied; and it is further ORDERED 

### that plaintiff shall, within ten days from the date ofthis decision and order,
serve a copy ofthis decision and order with notice ofentry upon defendant and the Clerk ofthe Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further ORDERED 

### that such service upon the Clerk ofthe Court and the Clerk ofthe General Clerk's Office shall be made in accordance with the procedures set forth in the 

### Protocol on Courthouse and County Clerk Proceduresfor Electronically Filed Cases (accessible at the "EFiling" page on the court's website at www.nycourts.gov/supctmanh); and it is further

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### ORDERED that the parties are to appear for a preliminary conference on September 13, 2024 inPart4 (80 Centre Street, room 308) at 10:00 am. This constitutes the decision and order ofthe Court.

7/15/2024

DATE CHECK ONE: HON. JUDY H. KIM, J.S.C.

APPLICATION: CHECK IF APPROPRIATE:

# ~ CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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