State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 7, 2016 521368 

________________________________

DEBORAH BYNUM, Individually

and as Guardian of the

Person and Property of

HEATHER BYNUM,

Respondent, MEMORANDUM AND ORDER

v

BRETT KEBER et al.,

Appellants.

________________________________

Calendar Date: November 19, 2015

Before: Peters, P.J., Lahtinen, Garry and Rose, JJ.

__________

Roemer Wallens Gold & Mineaux, LLP, Albany (Matthew J.

Kelly of counsel), for appellants.

LaFave, Wein & Frament, PLLC, Guilderland (Jason A. Frament

of counsel), for respondent.

__________

Rose, J.

Appeal from an order of the Supreme Court (Versaci, J.),

entered January 26, 2015 in Schenectady County, which, among

other things, partially denied defendants' motion to dismiss the

complaint.

Plaintiff's daughter, Heather Bynum, attended a music

festival where she ingested a harmful substance and sustained

significant injuries. Plaintiff then commenced this action in

her individual capacity and on behalf of Bynum, asserting causes

of action alleging, among other things, negligence and fraud
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against defendants, the promoters of the festival.1 Defendants

filed a pre-answer motion to dismiss the complaint against

defendants Brett Keber and Jonathan Fordin as improper parties,

and against all defendants for failure to state a cause of

action. As relevant here, Supreme Court denied the motion, and

defendants now appeal.

Defendants contend that plaintiff's first two causes of

action sounding in negligence fail to sufficiently allege that

defendants owed a duty of care to Bynum. We cannot agree. In

this procedural context, we "accept the facts as alleged in the

complaint as true, accord plaintiffs the benefit of every

possible favorable inference, and determine only whether the

facts as alleged fit within any cognizable legal theory" (Leon v

Martinez, 84 NY2d 83, 87-88 [1994]; accord Slezak v Stewart's

Shops Corp., 133 AD3d 1179, 1179 [2015]). "'Whether the

plaintiff will ultimately be successful in establishing those

allegations is not part of the calculus'" (Snyder v Brown Chiari,

LLP, 116 AD3d 1116, 1117 [2014], quoting Landon v Kroll Lab.

Specialists, Inc., 22 NY3d 1, 6 [2013]). 

Mass gathering permittees, such as defendants, "have a

common-law duty to minimize foreseeable dangers on their

property, including the criminal acts of third parties"

(Maheshwari v City of New York, 2 NY3d 288, 294 [2004]; accord

Milton v I.B.P.O.E. of the World Forest City Lodge, #180, 121

AD3d 1391, 1391 [2014]; see Vetrone v Ha Di Corp., 22 AD3d 835,

838-839 [2005]). "The scope of that duty is defined according to

the likelihood that such behavior will occur and endanger

[attendees] based on past experience" (O'Connor v Syracuse Univ.,

66 AD3d 1187, 1189 [2009], lv dismissed 14 NY3d 766 [2010]

[citations omitted]; see Crowningshield v Proctor, 31 AD3d 1001,

1002 [2006]). Accepting as true plaintiff's allegations that

defendants knew or should have known of the widespread presence

and use of illegal drugs at this annual festival, known as Camp

1 Plaintiff also commenced a separate action alleging

negligence against, among others, the municipalities that issued

the permits allowing the festival to take place (Bynum v Camp

Bisco, LLC, ___ AD3d ___ [decided herewith]).
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Bisco, we find that plaintiff has adequately stated a cause of

action for negligence based on defendants' alleged failure to

exercise reasonable care in curtailing the use of illegal drugs

on the festival grounds.

As for plaintiff's separate cause of action for negligence

based upon defendants' alleged failure to provide adequate onsite

emergency medical services, defendants, as mass gathering

permittees, had a clear duty to provide such services pursuant to

the State Sanitary Code (see 10 NYCRR 7-4.3 [n]; 18.3 [b]; 18.4

[a]). According to plaintiff's allegations, defendants knew that

Camp Bisco had increased in size every year and that, in 2011,

over 26,000 people were in attendance. Plaintiff further asserts

that, despite their apparent knowledge, defendants circumvented

their duty to provide the proper level of medical services at the

festival by misrepresenting to the relevant permitting

authorities that the maximum attendance for the 2012 edition of

Camp Bisco attended by Bynum would be just 12,000 people (see 10

NYCRR 18.4 [a] [1], [2]). Accepting plaintiff's further

statement that defendants' provision of inadequate medical

services was a proximate cause of Bynum's injuries, we find that

these allegations state a cognizable theory of negligence as well

(see e.g. Burgundy Basin Inn v Watkins Glen Grand Prix Corp., 51

AD2d 140, 143-144 [1976]). 

We do agree, however, with defendants' argument that

plaintiff's fraud cause of action, which asserts that defendants

misrepresented the anticipated attendance at Camp Bisco to the

municipalities that issued the permits allowing the festival to

take place, is not sufficient to survive a motion to dismiss. In

order to state a cause of action for fraudulent

misrepresentation, a plaintiff must allege with particularity "'a

misrepresentation or a material omission of fact which was false

and known to be false by [the] defendant, made for the purpose of

inducing the other party to rely upon it, justifiable reliance of

the other party on the misrepresentation or material omission,

and injury'" (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173,

178 [2011], quoting Lama Holding Co. v Smith Barney, 88 NY2d 413,

421 [1996]; see CPLR 3016 [b]). 
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Here, plaintiff concedes that defendants never made any

misrepresentations regarding the estimated attendance at Camp

Bisco to Bynum directly, which, ordinarily, is fatal to a claim

of fraudulent misrepresentation (see Mandarin Trading Ltd. v

Wildenstein, 16 NY3d at 179-180). Contrary to plaintiff's

contention, the third-party reliance doctrine is inapplicable to

the facts of this case, as plaintiff does not allege that

defendants' representations to the relevant permitting

authorities regarding the expected attendance at Camp Bisco were

made "for the purpose of being communicated to [Bynum]" or with

the intent that such representations would "reach and influence

[her]" (Eaton Cole & Burnham Co. v Avery, 83 NY 31, 35 [1880];

see Wildenstein v 5H&Co, Inc., 97 AD3d 488, 490 [2012]; compare

Buxton Mfg. Co. v Valiant Moving & Stor., 239 AD2d 452, 453-454

[1997]; Desser v Schatz, 182 AD2d 478, 479-480 [1992]). 

We also agree with defendants that Supreme Court should

have dismissed the complaint in its entirety against Keber and

Fordin, who are co-owners of defendant MCP Presents, LLC (see

Limited Liability Company Law § 609 [a]). Plaintiff does not

specifically allege any manner in which Fordin "participated in

the commission of a tort in furtherance of company business or to

benefit the business" (Haire v Bonelli, 57 AD3d 1354, 1357

[2008]; see Kew Gardens Hills Apt. Owners, Inc. v Horing Welikson

& Rosen, P.C., 35 AD3d 383, 386 [2006]). As for Keber, plaintiff

asserts only that he personally participated in the alleged

fraudulent misrepresentation, a cause of action – as we have said

– that plaintiff has failed to state.

Peters, P.J., Lahtinen and Garry, JJ., concur.
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ORDERED that the order is modified, on the law, without

costs, by reversing so much thereof as denied defendants' motion

to dismiss (1) the entire complaint against defendant Brett Keber

and defendant Jonathan Fordin, and (2) the third cause of action

against the remaining defendants; motion granted to that extent

and said causes of action dismissed as to said respective

defendants; and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court