        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1268
CA 15-00381
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


ADAM GIACOMETTI, PLAINTIFF-RESPONDENT-APPELLANT,

                    V                              MEMORANDUM AND ORDER

JACOB B. FARRELL, COUNTY OF ERIE, TIMOTHY B.
HOWARD, IN HIS CAPACITY AS ERIE COUNTY SHERIFF,
DEPUTY THOMAS WAS, BUFFALO BILLS INC.,
DEFENDANTS-RESPONDENTS-RESPONDENTS,
ET AL., DEFENDANTS.
(ACTION NO. 1.)
-----------------------------------------------
COUNTY OF ERIE AND BUFFALO BILLS INC.,
THIRD-PARTY PLAINTIFFS,

                    V

CONTEMPORARY SERVICES CORPORATION AND EXECUTIVE
SECURITY MANAGEMENT, INC. DOING BUSINESS AS THE
APEX GROUP, THIRD-PARTY DEFENDANTS.
-----------------------------------------------
ADAM GIACOMETTI, PLAINTIFF-RESPONDENT-APPELLANT,

                    V

CONTEMPORARY SERVICES CORPORATION, DEFENDANT,
AND EXECUTIVE SECURITY MANAGEMENT, INC. DOING
BUSINESS AS THE APEX GROUP,
DEFENDANT-APPELLANT-RESPONDENT.
(ACTION NO. 2.)
(APPEAL NO. 2.)


BARCLAY DAMON LLP, BUFFALO (VINCENT G. SACCOMANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT.

SMITH, MINER, O’SHEA & SMITH, LLP, BUFFALO (CARRIE L. SMITH OF
COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.

GOLDBERG SEGALLA LLP, BUFFALO (TROY S. FLASCHER OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS-RESPONDENTS COUNTY OF ERIE AND BUFFALO BILLS
INC.


     Appeal and cross appeal from an order of the Supreme Court, Erie
County (Patrick H. NeMoyer, J.), entered October 21, 2014. The order,
among other things, granted the motions of plaintiff and defendant
                                 -2-                          1268
                                                         CA 15-00381

Executive Security Management, Inc. doing business as The Apex Group,
for leave to reargue and, upon reargument, the court adhered to its
prior determination.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of the motion of
defendants County of Erie and Buffalo Bills Inc. for summary judgment
dismissing the complaint against them and reinstating the complaint
against those defendants, and denying that part of the cross motion of
defendant Executive Security Management, Inc. doing business as the
Apex Group, for summary judgment dismissing the complaint to the
extent that plaintiff alleges that its employees were negligent or
reckless in pursuing defendant Jacob B. Farrell and reinstating the
complaint against that defendant in its entirety, and as modified the
order is affirmed without costs.

     Memorandum: Plaintiff commenced these actions seeking damages
for injuries sustained when he was struck by a vehicle driven by
defendant Jacob B. Farrell. The accident occurred while plaintiff was
walking from a parking lot to an adjacent stadium to watch a football
game. The parking lot was owned by defendant County of Erie (County)
and leased by defendant Buffalo Bills Inc. (Bills). The Bills
contracted with defendant Executive Security Management, Inc. doing
business as the Apex Group (Apex), to provide security in the parking
lot on days when football games were played in the stadium. According
to plaintiff and several eyewitnesses, employees of Apex were in
pursuit of Farrell’s vehicle at the time of the accident and,
immediately before striking plaintiff, Farrell’s vehicle swerved to
avoid a burning log that was partially obstructing a lane in the
parking lot.

     The County and the Bills (hereafter, Bills defendants) moved for,
inter alia, summary judgment dismissing the complaint against them,
and Apex cross-moved for, inter alia, summary judgment dismissing the
complaint against it. Apex appeals and plaintiff cross-appeals from
an order that, inter alia, upon reargument adhered to a prior
determination granting that part of the motion of the Bills defendants
for summary judgment dismissing the complaint against them, and
granting that part of Apex’s cross motion for summary judgment
dismissing the complaint against it to the extent that plaintiff
alleges that its employees were negligent or reckless in pursuing
Farrell. Apex contends on appeal that Supreme Court erred in failing
to grant its cross motion in its entirety and that the court erred in
granting the motion of the Bills defendants, and plaintiff contends on
his cross appeal that the court erred in granting the motion of the
Bills defendants and in granting Apex’s cross motion in part. We
agree with Apex and plaintiff that the court erred in granting the
motion of the Bills defendants, and we agree with plaintiff that the
court erred in granting Apex’s cross motion in part. We therefore
modify the order accordingly.

     Addressing first the cross motion of Apex, we note that Apex
contends that the court erred in refusing to grant the cross motion in
its entirety because plaintiff improperly asserted a new theory of
                                 -3-                          1268
                                                         CA 15-00381

liability in opposition to the cross motion for summary judgment by
submitting the affidavit of a nonparty witness who asserted that,
prior to the accident, Farrell was involved in a fight, taken into
custody by Apex employees, and then released by Apex. We reject that
contention, inasmuch as the affidavit did not assert a new theory of
liability. Rather, the affidavit provided support for plaintiff’s
allegations in the complaint and bill of particulars that Apex
negligently failed to furnish adequate security and crowd control in
the parking lot (cf. Darrisaw v Strong Mem. Hosp., 16 NY3d 729, 731).
Contrary to Apex’s further contention, the nonparty witness’s
identification of Farrell as the person in the custody of Apex
employees was in admissible form inasmuch as the statement of a
witness that he or she “subsequently learned [another party’s] name
does not constitute inadmissible hearsay” (People v Cedeno, 252 AD2d
307, 310, lv dismissed 93 NY2d 1015). Apex also contends that the
affidavit of the nonparty witness was not properly before the court
because plaintiff had previously failed to disclose the name of the
nonparty witness. We reject that contention. There is no evidence in
the record that the failure to disclose the name of the witness was
“ ‘the result of willful, deliberate, and contumacious conduct’ . .
. , or [that] the moving party [was] prejudiced by the late
disclosure” (McLeod v Taccone, 122 AD3d 1410, 1412). Contrary to
Apex’s contention, we conclude that the court properly determined that
there are triable issues of fact whether Apex was negligent in
allowing the burning log to partially obstruct the lane in the parking
lot (see O’Neill v City of Port Jervis, 253 NY 423, 431-432; DiNatale
v State Farm Mut. Auto. Ins. Co., 5 AD3d 1123, 1125, lv denied 3 NY3d
607), and whether that negligence was a proximate cause of the
accident (see DiNatale, 5 AD3d at 1125; Fonzi v Beishline, 270 AD2d
912, 913).

     Also with respect to the cross motion, we agree with plaintiff on
his cross appeal that Apex did not establish as a matter of law that
its employees were not negligent or reckless in their pursuit of
Farrell through the parking lot, and that the court therefore erred in
granting the cross motion of Apex to that extent. Apex submitted
evidence that Farrell was intoxicated and was driving too quickly for
the conditions in the crowded parking lot, but Apex failed to submit
any evidence that would establish that the conduct of its employees
during the pursuit of Farrell “was reasonable and did not show a
reckless disregard for the safety of others as a matter of law” (Friel
v Town of Brighton, 206 AD2d 863, 863; see generally Palella v State
of New York, 141 AD2d 999, 1000).

     With respect to the motion of the Bills defendants, we agree with
Apex and plaintiff that the Bills defendants failed to establish as a
matter of law that they satisfied their duty to maintain a safe
premises. We thus conclude that the court erred in granting that part
of their motion for summary judgment dismissing the complaint against
them. Although the Bills contracted with Apex to provide security in
the parking lot, we conclude that the Bills defendants are
“vicariously liable for [Apex’s] negligence based on [their]
nondelegable duty to keep the premises safe” (Gerbino v Tinseltown
USA, 13 AD3d 1068, 1071; see Thomassen v J & K Diner, 152 AD2d 421,
                                 -4-                          1268
                                                         CA 15-00381

424, appeal dismissed 76 NY2d 771, rearg denied 76 NY2d 889).

     We further conclude that the Bills defendants failed to establish
as a matter of law that Apex had entirely displaced their duty to
maintain the premises safely. “[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 . . . where[,
inter alia,] the contracting party has entirely displaced the other
party’s duty to maintain the premises safely” (Espinal v Melville Snow
Contrs., 98 NY2d 136, 140). Although the Bills defendants submitted
the deposition testimony of the vice president of Apex in which he
stated that Apex was responsible for security in the parking lot, the
Bills defendants also submitted the Bills’ contract with Apex, which
provided that Apex would follow guidelines and procedures promulgated
by the Bills and that the Bills “reserve[d] the right to utilize its
own employees to provide security services.” The Bills defendants
further submitted evidence that an employee of the Bills drafted a
Stadium Guide that was distributed to all Apex employees as a
handbook; the Bills held briefings for Apex employees before every
football game; the Bills determined Apex’s staffing levels; and the
Bills determined where Apex employees would be stationed in the
parking lot. Moreover, the Bills defendants submitted the deposition
testimony of the Bills’ former director of operations and event
services, who testified that he instructed Apex to concentrate on
“underage drinking or other rowdiness type issues” in the parking lot.
They also submitted the deposition testimony of a person employed by
Apex as a security guard, who testified that removing the burning log
from the roadway “wasn’t high on our priority list” because security
personnel was focused on “underage drinking and just drunk, obnoxious
fans.” On this record, the Bills defendants failed to meet their
burden of establishing as a matter of law that Apex had “entirely
absorb[ed]” the duty to maintain safe conditions on the subject
premises (id. at 141; see Rahim v Sottile Sec. Co., 32 AD3d 77, 82).




Entered:   November 20, 2015                   Frances E. Cafarell
                                               Clerk of the Court
