### Tung v Bowery Presents LLC 2024 NY Slip Op 30267(U) January 22, 2024 Supreme Court, New York County Docket Number: Index No. 161325/2019 Judge: Paul A. Goetz 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.NYSCEF DOC. NO. 208 INDEX NO. 161325/2019 RECEIVED NYSCEF: 01/22/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEWYORK COUNTY PRESENT: HON. PAUL A. GOETZ Justice

---------------------------------------------------------------------------------X

BELLE TUNG, BELLE TUNG, Plaintiffs,

- V - THE BOWERY PRESENTS LLC,AEG PRESENTS NY, LLC D/B/N PLAYSTATION THEATER, PARADOCS WORLDWIDE INC.,CONCERT SERVICE SPECIALISTS, INC. D/B/A CSS SECURITY, INC., Defendants.

---------------------------------------------------------------------------------X BELLE TUNG, BELLE TUNG Plaintiffs,-againstDUVAN DIAZ, JENNIFER VALENCIA, Defendants.

--------------------------------------------------------------------------------X PART
INDEX NO. 161325/2019 MOTION DATE 06/15/2023 MOTION SEQ. NO. 006
DECISION 

### + ORDER ON MOTION

MOTION Index No. 159402/2021 (Motion #002) 47

The following e-filed documents, listed by NYSCEF document number (Motion 006) 145, 146, 147, 148, 149,150,151,152,153,154,155,156,157,158,159,160,161,162,163,164,165,166,167,168, 169, 170,171,172,173,174,175,176,177,178,179,197,199,200,202,203,204,205,206 were read on this motion to/for JUDGMENT-SUMMARY

In this wrongful death andmedical malpractice action defendants, The Bowery Presents LLC, AEG Presents NY LLC d/b/a Playstation Theater ("AEG"); and Paradocs Worldwide Inc. ("Paradocs") 1 move pursuantto CPLR § 3212 for summaryjudgementdismissing all ofthe

1 By stipulation dated December 1, 2022, plaintiffs discontinued their claims against Concert Service Specialists, Inc. d/b/a CSS Security with prejudice (NYSCEF Doc No 128).

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claims as against thembyplaintiffs. In a related action 

### (Belle Tung et alvDuvan Diaz etal, Index No 159402/2021) which was previously ordered consolidated with this action, defendants Duvan Diaz and Jennifer Valencia also movepursuant to CPLR § 3212 for summaryjudgement dismissing all ofthe claims against thembyplaintiffs. By decision and order dated September 21, 2023, this court ordered the instant case to be consolidatedwith Index No. 159402/2021 (NYSCEF Doc No 198). As the motions in both cases involve identical matters offact and law, and consolidation has notyet been effectuatedbothmotions will be decided by this decision and order. 

### BACKGROUND Plaintiff, Belle Tung commenced this action following the death ofher daughter Candice Chen (NYSCEF DocNo 1) after attending an Electronic Dance Music concert at the then PlayStation Theatre with herboyfriend, Anson Huynh, and other friends on May 12, 2018 (NYSCEF Doc No 200). In his deposition, Mr. Huynh stated that Ms. Chen hadtaken MDMA or molly at somepoint during the night (Huynh EBT, NYSCEF Doc No 162 at 63: 16

- 64:9). Shortlybefore midnight Ms. Chen told Mr. Huynh that she was not feeling well and Mr. Huynh reported seeing her eyes roll backin herhead and then collapsing (id. at 38: 16

- 39:25). Ms. Chen was taken offthe main dance floor and her friends went to find someone to help (id.). A radio call wasmade from security supervisorJames Green to EMT personnel contractedby defendant AEG at 12:05 AM on May 13, 2018 (Green EBT, NYSCEF DocNo 169). AEG hired defendant Paradocs as an independent contractor to provide EMT services during events taking place at the PlayStation theatre (NYSCEF Doc No 176). Paradocs had two employee EMTs working the event, defendants Duvan Diaz and Jennifer Valencia 

### (See Valencia EBT, NYSCEF DocNo 163; Diaz EBT, NYSCEF DocNo 164).

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### Ms. Chen was then placed in a wheelchair and moved to an area known as "Medic Alley" where she was treatedby defendants Diaz and Valencia. There is a dispute as to both the precise timeline ofevents and Ms. Chen's condition when she was brought to the medical area. However, the parties agree that the EMTs along with AEG employee Adetinuke Ogunleye placed ice on Ms. Chen's head and attempted to give herjuicewhich she was unable to drink. Ms. Chen's vitals were checked, and she was ventilated using a BagMask Valve ("BMV"). Ms. Chen's condition continued to deteriorate and due to difficulty with cell phone reception in Medic Alley, she was brought upstairs and 911 was called. Defendants claim that 911 was called at 12: 18 AM and FDNY EMS arrived at 12:22 AM (NYSCEF Doc No 171). However, plaintiffs note the FDNY Prehospital Care Report which states that the call was received at 12:26 AM and the EMS arrived at 12:30 AM (NYSCEF Doc No 173). The FDNY paramedics transferred Ms. Chen to a stretcherwhere they "initiated all advanced life support protocols
... which involves attempting advanced airway, advanced medications, IV lines and
... continuous high quality CPR" (Stenborg EBT, NYSCEF DocNo 170 at 20:9

- 20: 13). The FDNYparamedics continued to work on Ms. Chen at the venue until 12:54 AM (NYSCEF Doc No 173). They arrived at the hospital at 12:58 AM. (id.) 

### Attempts to resuscitate Ms. Chen continued until 1:26 AM when she was pronounced dead (NYSCEF Doc No 200). An autopsy was conducted, and the cause ofdeath was determined to be "acute methylenedioxymethamphetamine intoxication" (NYSCEF Doc No 178). DISCUSSION "It

### is well settled that 'theproponent ofa summaryjudgmentmotion mustmake aprima facie showing ofentitlement tojudgment as a matter oflaw, tendering sufficient evidence to demonstrate the absence ofany material issues offact"' 

### (Pullman v Silverman, 28 NY3d 1060,

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1062 [2016]). "Adefendant moving for summaryjudgmentdismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure from accepted standards ofmedical care orthat any departure was not a proximate cause ofthe plaintiffs injuries" 

### (Vidito vHugelmeyer, 150 AD3d 1309, 1309-10 [2d Dept 2017]). Ifa defendant makes this showing "by submitting an affirmation from a medical expert establishing that the treatment providedto the injuredplaintiffcomported with good and accepted practice, the burden shifts to the plaintiffto present evidence in admissible form that demonstrates the existence ofa triable issue offact" 

### (Bartolacci-Meir v Sassoon, 149 AD3d 567,570 [1st Dept 2017]). When there are competing expert opinions regarding deviation from the acceptedmedical standards ofcare summaryjudgementis inappropriate as triable issues offact exist 

### (Destiny H vBronxLebanon Hosp., 137 AD3d 607 [1st Dept2016]). Plaintiffs allege causes ofactions in these two related actions for negligence, wrongful death, loss ofservices, pain and suffering, andmedical malpractice. Plaintiffs' claims for wrongful death, loss ofservices, and pain and suffering are dependent on a determination of liabilityunder the negligence claims therefore a determination on the negligence cause ofaction will be dipositive ofall causes ofaction in the complaint. 

### NegligenceAgainst Valencia andDiaz In the 

### Belle Tung et alv Duvan Diaz etal, complaintplaintiffs allege four causes of action against defendants Diaz and Valencia (Index No 159402/2021, NYSCEF Doc No 1). Plaintiffs allege one claim ofnegligence, two claims ofwrongful death, and one claim ofloss of services 

### (id.). Diaz and Valencia movepursuantto CPLR § 3212 to dismiss the complaint in its entirety arguing that the treatmentprovidedto Ms. Chen did not deviate from accepted standards ofpractice.

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The initial burden is on Diaz and Valencia to establish that the treatment they provided to Ms. Chen was within the accepted standards ofmedical practice. Diaz and Valenciameettheir burden ofproofby submitting the affidavit ofDr. Robert Meyerwho opines that the treatment renderedby Valencia and Diaz did not deviate from the accepted standard ofmedical practice (NYSCEF Doc No 149 

### ,J 28). However, plaintiffs have also satisfied theirburden ofraising an issue offact by submitting a conflicting affidavit from their own medical expert Dr. Kai Sturmann. In particular, Dr. Sturmann opined that the on site EMTs failed to diagnose the severity ofthe decedent's condition, that they waited too long to call 911, and that the use ofa BMVwhile decedentwas in
a seated position was inappropriate as a seated position can blockthe airways (NYSCEF Doc No 200 

### ,i 23-25). Accordingly, plaintiffs have raised a triable issue offact in opposition to defendants Valencia and Diaz's motion and summaryjudgementmustbe denied. 

### Negligence as againstParadocs In the amended complaint ofthe case bearing Index No. 161325/19 plaintiffs allege five
causes ofaction against defendant Paradocs (NYSCEF Doc No 21). They allege one claim each ofnegligence, medical malpractice, wrongful death, pain and suffering, and loss ofservices 

### (id.). Defendant Paradocs moves pursuantto CPLR § 3212 to dismiss the entire complaint arguing that the treatmentprovidedby their employees Diaz and Valencia did not deviate from accepted standards ofpractice. "An employermaybe held vicariously liable for the tortious acts ofits employee
... if those acts were committedin furtherance ofthe employer's business and within the scope of employment" (N. 

### Xv CabriniMed. Ctr., 280 AD2d 34, 37 [1st Dept 2001]). Here, the alleged negligent actions were committed within the scope ofdefendants Diaz and Valencia's

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### employment. Therefore, Paradocs can be found vicariously liable for the allegednegligence of their employees Diaz and Valencia. Accordingly, for the same reasons summaryjudgementwill be denied as against Diaz and Valencia it must too be denied as against Paradocs. 

### Vicarious Liability as againstAEG In the amended complaint, plaintiffs allege four causes ofaction against defendant AEG (NYSCEF Doc No 21). They allege one claim each ofnegligence, wrongful death, pain and suffering, and loss ofservices 

### (id.). Plaintiffs allege that AEG is vicariously liable for the alleged negligence bytheir employees. Defendant AEG moves to dismiss the entire complaint arguing that they cannot beheld vicariously liable for any ofthe actions ofco-defendants Diaz, Valencia,
or Paradocs as they were independent contractors. AEG also contends that while AEG employee Ms. Ogunleye is a certified EMT she was not acting in her capacity as an EMT on the night of Ms. Chen's death and any actions she took were under the direction and control ofParadocs employees. Therefore, according to AEG's argument, any negligent treatment cannotbe attributed to Ms. Ogunleye and thus it cannot beheld vicariously liable. "The general rule is that a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts" 

### (Kleeman v

### Rheingold, 81 NY2d 270,273 [1993]). Exceptions to this rule include "negligence of the employer in selecting, instructing or supervising the contractor; employment for work that is especially or 'inherently' dangerous; and, finally, instances in which the employer is under a specific nondelegable duty" 

### (id.). Here, plaintiffs have not submitted any evidence that AEG was negligent in selecting Paradocs, that the work was inherently dangerous, or that providing medical services was a nondelegable duty which AEG couldnot transfer to Paradocs (See 

### Begley v City of New York,

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111 

### AD3d 5 [2d Dept 2013] [finding that the Department ofEducation could notbe found vicariously liable for negligence byindependent contractor nursing services because "we cannot find that the provision ofnursing services is so integral to the DOE's core responsibility of educating children that, as a matter ofpublic policy, it can be deemed a nondelegable duty that the DOE cannotbe permitted to transfer to another"]). Therefore, AEG cannotbe held vicariously liable for the actions ofParadocs. However, while AEG cannotbe found vicariously liable for the actions ofDiaz and Valencia, there is a triable issue offact regarding the services providedby their own employee Ms. Ogunleye, who assisted the Paradocs EMTs that night. While defendantAEG argues that Ms. Ogunleye did not initiate any care for the decedent on her own and was simply following the direction ofParadocs EMTs, plaintiffs contend that Ms. Ogunleye, a certified EMT herself, took actions on her own opening AEG to vicarious liability for her actions. If

### a fact finder was to determine that Ms. Ogunleye was acting within the scope ofher employment and was negligent in her treatment ofthe decedent, then AEG could be found vicariously liable for her actions. Accordingly, since there exists a triable issue offact regarding Ms. Ogunleye'srole in rendering
care to Ms. Chen, AEG's motion for summaryjudgement on this basis mustbe denied. 

### Negligence as againstAEG Plaintiffs also have a negligence claim against AEG independent ofthe allegedly negligent medical services claim. Plaintiffs argue that the premises were not properly equipped to protect Ms. Chen against the foreseeable dangers that could occur at an event ofthis type. AEG avers it has compliedwith the industry standards for its venue and it did notbreach a duty ofcare to Ms. Chen.

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"In order to prevail on a negligence claim, a plaintiffmust demonstrate; 1) a duty owed by the defendant to the plaintiff, 2) a breach thereof, and 3) injury proximatelyresulting therefrom" 

### (Pasternack vLab. Corp. of Am. Holdings, 27 NY3d 817 [2016]). It is well established that an owner ofa theatre has a duty to guard against harms which are reasonably foreseeable and could be avoided with the exercise ofordinary care 

### (Tantillo v 

### Goldstein Bros. Amusement Co., 248 NY 286 [1928]). "Foreseeability ofrisk is an essential element ofa faultbasednegligence cause ofaction because the community deems a person at fault only when the injury-producing occurrence is one that couldhave been anticipated" 

### (Di Ponzio v

### Riordan, 89 NY2d 578, 583 [1997]). When an eventhas a known history ofdrug use, dangers associated with that drug maybe deemed foreseeable 

### (Bynum v 

### Camp Bisco, LLC, 198 AD3d 1164 [3d Dept 2021]).Here, AEGbyhiring an EMT companyto provide medical care, implies that it concedes it is foreseeable that its patrons couldneedmedical attention during events. Additionally, AEG employee Ms. Ogunleye testified in her deposition thatpriorto certain shows AEG employees wouldhave a meeting during which they discussed the likelihood that there wouldbe drug use at the event (Ogunleye EBT, NYSCEF DocNo 166 at 22:22

- 24:23). Referencing the event Ms. Chen attended Ms. Ogunleye stated that "itis an EDM [Electronic Dance Music] show and that crowd usually brings interesting characters and sometimes there is drug use" 

### (id. at 24: 17

- 24:20). AEG employee Justin Grover also testified that AEG employees were told to contact an EMT ifa patron told them theyhad taken MDMA (Grover EBT, NYSCEF DocNo 165 at 40:22

- 41:3). Considering the facts in the lightmost favorable to the plaintiffs, the risk ofmedical emergencies including overdoses were foreseeable and AEG had a duty to protect from these risks.

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### Forproofthat it did notbreach this duty ofcare, defendant AEG offers an affidavit by hospitality expert Marissa Orlowski, Ph.D., wherein she states that AEG has complied with the industry standards ofcare that are expected from a venue ofthe size and type ofthe PlayStation Theatre (NYSCEF Doc No 150). Plaintiffs did not offer an expert opinion countering Dr. Orlowski's contentions thatAEG was in compliance with industry standards. However, Dr. Orlowski admits she has no medical training and defers to the assertions regarding medical care to the medical experts (id. 

### at 

### ,i 14). Since many ofthe allegations regarding AEG's negligence made by plaintiffs stem from factual issues on how to properly plan for and respond to a medical emergency, the assertions made byDr. Orlowski cannotby themselves absolve AEG ofliability. For example, considering that itwas foreseeable thatpatrons couldhave potentially overdosed at the concert, a fact finder could determine that itwas unreasonable for AEG to place "Medic Alley" in an area without cell phone or landline service. Considering the expert medical knowledge that is necessary to determine how to properly assess an overdosing patient and how a delay in contacting 911 can affect the patient, Dr. Orlowski's testimony is not dispositive ofthe issue ofliability for AEG. Therefore, there are unresolved issues offact regarding whetherAEG breached its duty ofcare to the decedent. Accordingly, AEG's summaryjudgmentmotion mustbe denied in its entirey. Accordingly it is: ORDERED that defendants The BoweryPresents LLC, AEG Presents NY LLC d/b/a Playstation Theater and Paradocs Worldwide Inc.'s motion for summaryjudgement dismissing the complaint in the action bearing Index No. 161325/2019 (MS# 6) is denied; and it is further

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### ORDERED that defendants Duvan Diaz andJenniferValencia'smotion for summary judgment dismissingthe complaintinthe actionbearing IndexNo. 159402/2021 (MS #2) is denied; and it is further ORDERED thatplaintiffs who previouslymovedto consolidate

### Belle Tung etalv The BoweryPresentsLLCetal, IndexNo. 161325/2019 with

### Belle Tung etalv Duvan Diaz etal, IndexNo. 159402/2021, whichwas grantedbydecision and order dated September 21, 2023 (NYSCEF Doc No 198) shall fully complywith the requirements therein within 20 days ofthe date ofthis decision and orderto effectuate the consolidation ofthe two actions.

1/22/2024

DATE CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE:

# ~ CASE DISPOSED GRANTED 

# 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

161325/2019 TUNG, BELLE vs. BOWERY PRESENTS LLC Motion No. 006
10 of 10 PAUL A. GOETZ, J.S.C. 

# 8 NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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### □ REFERENCE

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