                           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
                              -2-                521368

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]).
                              -3-                521368

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]).
                              -4-                521368

      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.
                              -5-                  521368

      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
