MemoOpposingDefsMSJ-1.docx

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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GLENNA TOPPEL and ROBERT TOPPEL, Civil Action No. 03-CV-3042 (DAB)

(Case 1:03-cv-03042-DCF Document 38 Filed 02/29/08 Page 11of 18)

-against..

Plaintiffs,

MARRIOTT INTERNATIONAL, INC., MARRIOTT WORLDWIDE CORPORATION,

Defendants.

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PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Noah H. Kushlefsky (NHK6272) Kreindler & Kreindler LLP

100 Park Avenue

New York, NY 10017 (212) 867-8181

Attorneys For Plaintiffs

TABLE OF CONTENTS

TABLE OF AUTHORITIES……………………………………………………………………………………………..ii

INTRODUCTION …………………………………………………………………………………………………………… 1

STATEMENT OF FACTS ……………………………………………………………………………………………….. 2

A. Marriott Controlled the Nassau Marriott Resort and the Sole Mare

Restaurant ………………………………………………………………………………………………….3

1. The Franchise Agreement………………………………………………………………….3

2. The Deposition of Marriott's Person Most Knowledgeable Shows the Extent of Marriott's Control Over the Nassau Marriott Resort……………………………………………………………………… 4

3.The SOP Manual Governed Every Aspect of the Nassau Marriott

Resort …………………………………………………………………………………………….. 5

B. Marriott Wanted Guests to Know it Controlled the Hotel………………………………… 6

1. Marriott Guarded its Name………………………………………………………………..6

2. The Toppels' Experience At The Hotel Confirmed That Marriott

Controlled the Resort ………………………………………………………………………..6

ARGUMENT…………………………………………………………………………………………………………………..7

I.The Law of New York Applies To This Case ………………………………………………… 7

II.The Summary Judgment Standard ……………………………………………………………….. 7

III.Marriot Exercised Sufficient Control Over The Hotel Premises To Be Held Liable

A. There Are Triable Issues of Fact Regarding Marriott's Control

Over the Nassau Marriott and the Sole Mare Restaurant ……………………. 8

B. Defendants' Cases Are Distinguishable …………………………………………. 10

There Are Triable Issues of Fact Regarding Negligence and Causation……………………… 11

Apparent Authority Also Remains A Viable Claim …………………………………………………..13

Conclusion………………………………………………………………………………..14

TABLE OF AUTHORITIES FEDERAL CASES

American Tissue, Inc. v. Donaldson, 351 F.Supp.2d 79 ………………………………. 12

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 …………………………………………….. 7

!d. at 255 ………………………………………………………………………………………. 8

Cronin v. Aetna Life Insurance Co., 46 F.3d 196 …………………………………………. 8

Exxon Co., USA. v. Sofec, Inc., 5517 U.S. 830 …………………………………………. 12

Sims v. Marriott International, Inc., 184 F.Supp.2d 616 ……………………………… 13

!d. at 617 …………………………………………………………………………………….. 13

Wu v. Dunkin Donuts, Inc., 105 F.Supp.2d 83 ……………………………………………. 10

!d. at 91 ………………………………………………………………………………………. 10

STATE CASES

Ahl v. Martin, 82 A.D.2d 938,440 N.Y.S.2d 748 ………………………………………… 9

Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 414 N.E.2d 666 ………. 12

Fogel v. Hertz International, Ltd., 141 A.D.2d 145, 529 N.Y.S.2d 484 ………… 13

Matter of Francis, 246 A.D.2d 751,668 N.Y.S.2d 55 ………………………………….. 8

Hart v. Marriott International, Inc., 304 A.D.2d 1057, 758 N.Y.S.2d 435 ……. 10

Kirkaldy v. Hertz Corp., 221 A.D.2d 599, 634 N.Y.S.2d 177 ………………………. 13

Lamarre v. Rensselaer County Plaza Associate, 303 A.D.2d 914, 758 N.Y.S.2d

182 ………………………………………………………………………………………………….. 12

Lein v. Czaplinski, 106 A.D.2d 723, 484 N.Y.S.2d 154 ………………………………. 12

Norton v. Cohen, 248 A.D.2d 519, 670 N.Y.S.2d 49 ………………………………….. 11

id ………………………………………………………………………………………… 11

Olmoz v. Wal-Mart Stores, Inc., 11 Misc.3d 1084( 816 N.Y.S.2d 698 ………….. 12

Winegrad v. New York University Medical Ctr., 64 N.Y.2d 851 …………………… 11

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UNIT:ED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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GLENNA TO:l?PEL and ROBERT TOPPEL,

Plaintiffs,

Civil Action No. 03-CV-3042 (DAB)

-against- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION FOR

MARRIOTT INTERNATIONAL, INC., MARRIOTT WORLDWIDE CORPORATION,

Defendants.

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SUMMARY JUDGMENT

INTRODUCTION

Marriott 1 wants this Court to believe that even though it monitored the temperature of the food in the hotel's restaurants and mandated a specific light bulb wattage, it was a mere franchisor exercising no control over the Nassau Marriott Resort. The defendants have moved for sutnmary judgment on the basis of the language in the franchisee agreement for the hotel

alone. But theit limited presentation of the facts and agreements does not show the true extent of Marriott's influence and control over the entire operation. Marriott meticulously monitored, inspected and improved the hotel premises and carefully guarded and guided the quality associated with the Marriott name.

The defendants have failed to mention the portions of the franchise agreement and the standard operating guidelines that show that Marriott trained the employees, mandated uniforms, required compliance with sign style, placement and design, and dictated the procedures on all matters from wake-up calls to Christmas lights, including the procedures at the restaurant. See, i.e., infra at 9. The defendants have excluded the testimony of their own Marriott employee who testified regarding the "Marriott System" of mandated policies that Marriott required at the

1 Plaintiffs sued both Marriott International, Inc. and Marriott Worldwide Corporation

(collectively "Marriott").

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Nassau Marriott Resort. The defendants have excluded the testimony of the Plaintiffs Mr. and

Mrs. Toppel who believed that they were staying at a Marriott owned and operated hotel.

Neglecting to mention this evidence, however, does not make it disappear, and defendants have not met their burden of establishing that they are entitled to judgment as a matter oflaw. There are disputed issues of material fact going to the control that Marriott exercised control over the hotel, including the placement of the menu at the top of a staircase which was negligent and caused Mrs. Toppel's injuries. Marriott may have had a franchise agreement for the Nassau Marriott Resort, but Marriott never relinquished control. This control makes Marriott liable for the conditions at the hotel and defendants' motion for summary judgment must be denied.

STATEMENT OF FACTS

On January 30, 2002, Glenna Toppel sustained serious physical injuries when she

tumbled down a flight of stairs while trying to view the dinner menu for the Sole Mare restaurant within the Nassau Marriott Resort. Kushlefsky Decl., Ex. A (Glenna Toppel Depo) at 16:20-21;

18:22-25.2 The menu had been mounted on a wall at the top of the stairs in a dimly lit area with carpet that did not distinguish the staircase. Ex. A (Glenna Toppel Depo) at 16:14; Ex B (Robert Toppel Depo) at 81:4; 82:6-15; Ex. C. (photo).

As explained by Mrs. Toppel, "I [was] going to look up at the menu, I looked up. The next thing I knew, I fell down a flight of stairs." Ex. A (Glenna Toppel Depo.) at 16:14-21,

18:15-17. Mr. Toppel confirmed that the menu was right at the stairs: "[Glenna] looked at the menu, and I looked at the menu, and she took half a step to the left and fell down a flight of stairs.. .I made a lunge to grab her and missed her by about 12 inches." Ex. B (Robert Toppel Depo.) at 82:10-21.

2Unless otherwise noted, Plaintiffs' exhibit references are to the Kushlefsky Declaration.

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Mrs.Toppel was 76 years-old at the time ofher accident. Ex. A (Glenna Toppel Depo.) al 5:10. She suffered a broken ankle, a broken wrist, and severe pain in her leg, neck, shoulders and back. !d. at 21:24 – 22:24; 23:4-12. Mrs. Toppel was taken to the emergency room; her left ankle and left wrist were reset and placed in plaster casts. She was home bound and mostly bed ridden for more than two months. Since the fall, Mrs. Toppel has been unable to drive or type. She is l1nstable on her feet and requires the use of a cane at all times. Id. at 52:5-7; 54:18-55:7;

69:11"'18; Ex B (Robert Toppel Depo.) at 93:23-94:19.

A. Marriott Controlled the Nassau Marriott Resort and the Sole Mare Restaurant.

1. The Franchise Agreement

Marriott had a franchise agreement with Ruffin's Crystal Palace Hotel Corporation Limited ("the franchisee") for the running of the Nassau Marriott Resort and Hotel and Crystal Palace Casino (''Nassau Marriott Resort" or "Nassau Marriott") in Nassau, the Bahamas. The franchise agreement incorporates and references the documents that establish the "Marriott

_ System" of operation. These documents include the Standard Operating Manual ("SOP Manual") that outlines the Marriott procedures that the franchisee was required to follow. Ex. D (Rosenm.an bepo.) at 13: 18-19; Ex. F (SOP Manual). The franchise agreement demonstrates that Marriott retained cohtrol over the operation of the Nassau Marriott Resort:

•Marriott reserved the right to train hotel managers. Defendants' Exhibits, Ex. B (Franchise Agreement) at 17.

•Marriott dictated the hiring process and specified the type of employee to be hired at the Nassau Marriott. Id. at 16.

•Marriott controlled the appearance of the Nassau Marriott employees by requiring that all hotel employees wear uniforms as specified in the SOP Manual. !d. at 17.

•Marriott required the franchisee to participate in and contribute to Marriott's

Marketing Activities. Id. at 22.

•Marriott required that the franchisee to renovate the Nassau Marriott using standards set by Marriott. !d. at 26.

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•Marriott mandated that certain improvements be made in the hotel and at the Sole Mare Restaurant, prior to the franchisee taking possession of the premises. These changes included increasing the lighting at the Sole Mare restaurant. Kushlefsky

Decl. Ex. E (page 11 ofthe Franchise Agreement). 1

•Marriott reserved the right to inspect and re-enter the Nassau Marriott at any time.

Defendants' Exhibits, Ex. Bat 22.

•Marriott reserved the right to inspect the Nassau Marriott's books, records, accounts and tax returns and demand an audit of same. !d. at 36.

•Marriott was named as an additional insured under liability policies for personal injuries arising or resulting from the operation of the Hotel. !d. at 37-38.

•Marriott required that menus and other materials used at Hotel restaurants, including Sole Mare, to comply with the style, pattern and design prescribed in the SOP Manual or otherwise approved in advance by Marriott. !d. at 21.

•Marriott established the payment scheme to receive royalties from the franchisee.

Id. at 12-13.

2. The Deposition of Marriott'sPerson Most Knowledgeable Shows the Extent of Marriott's Control Over the Nassau Marriott Resort.

Plaintiffs' counsel deposed Michael Rosenman, senior counsel in the brand and franchise transactions group for Marriott, in response to a 30(b)(6) deposition notice for the person most knowledgeable regarding the Nassau Marriott. Mr. Rosenman explained that the Marriott System "refers to the brand of Marriott hotels and resorts" (id. at 24:4-5) and "refers to all of those standards and procedures which the Marriott group of companies have developed to operate a Marriott branded hotel." !d. at 24:20-23. He explained that Marriott requires that

the hotel employees are trained to "properly… operate, administer and manage the hotel in accordancewith the System." !d. at 23:20-24.

•The Nassau Marriott was required to use Marriott's reservation system and property management system. !d. at 25.

•The Nassau Marriott was subject to "the hotel design guide which sets forth the design standards." !d. at 26:3-5.

1 Curiously, this page was left out of Defendants' presentation of the Franchise Agreement.

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•The Nassau Marriott was required under Marriott's Quality assurance program to undergo periodic inspections of the hotel and to participate in the guest satisfaction surveys. Id. at 26:8-27:6.

•The Nassau Marriott was allowed a 30-day cure period if the inspection showed that the franchisee failed to comply with the provisions of the Marriott program. Id. at 27:15-25.

. •All Marriott franchised hotels pay a percentage of gross revenues into a marketing fund which is administered by Marriott and used for advertising. Id. at 30:3-10.

The Sol Mare restaurant was included under the food and beverage operations section of the franchise agreement. This section states that "franchisee shall use only menus, signs, promotional displays and other materials which comply with the style, pattern and design prescribed in the SOP manual." Id. at 32.

•A follow"'UP inspection pursuant to the quality assurance program was conducted of the Nassau Marriott from April1 thru April3 of2002. Id. at 33:22- 35:6.

•Marriott trains third-party vendors to conduct their quality assurance inspections.

The inspectors work off a checklist of items that are to be examined to see if they

meet Marriott's minimum standards, which at the time of the subject incident was

eighty percent. Part of the inspection requires testing the temperature of certain food items listed on the inspector's check-list. Id. at 37:6- 38:2; 35:22-36:2.

•The Marriott Rewards program allows guests to earn points by staying in any of the Marriott managed or franchised properties, including the Nassau Marriott. Thesepoints can be redeemed for stays at any of the aforementioned properties. Id. at 21.

3. The SOP Manual Governed Every Aspect of the Nassau Marriott Resort. The topics covered in the SOP Manual show that Marriott left no detail to the franchisee.

Ex. E (SOP Manual). The SOP Manual mandated Christmas tree decorations, light bulb wattage and wake-up calls. Other topics included in the SOP Manual and dictated by Marriott include:

•bell stand responsibilities, fax pricing, guest safety, guest services logbook and record keeping, guest room security- open door/close door policies, mail, messages, packages, facsimiles, marketing communications display, nonuseable linen, processing linen, soiled linen handling, standards on cleanlines, telephones, wake-up calls. Ex. D (Rosenman Depo) at 17:11 – 18:7.

•Americans with Disabilities Act, tents and temporary structures, TTY equipment, use of pyrotechnics, voluntary walked guests, public restroom supplies, recreation uniform requirements, pool lifesaving equipment, minimum treatment, light bulb wattage, lost and found department, inspection procedures, hotel retail outlet, guest room lighting, guest response and problem analysis, flag display, fitness (health center certification!signage requirements), complimentary newspaper, Christmas tree and decorations. Id. at 19:11-20:19 (emphasis added).

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B.Marriott Wanted Guests to Know it Controlled the Hotel.

1. Marriott Guarded its Narne.

Marriott not only carefully protected the value of its brand name, but also created the appearance that it was the owner and operator of the Nassau Marriott and purposefully led guests

. to believe thatMarriott, with its world-renowned quality and service, was in charge ofthe hotel property. As explained in the agreements:

•Franchisor and other Marriott companies have developed and own a System for the establishment and operation ofMHRS Hotels, which offer guests exceptional quality and service. Defendants' Exhibits, Ex. B (Franchise Agreement) at 1.

•Franchisee understands and acknowledges the importance of operating the Hotel as an MHRS Hotel in strict conformity with the System in order to enhance public acceptance of and demand for all MHRS Hotels. !d.

•6.1 Operation in Accordance with the System.

Franchisee acknowledges that conformity with all aspects of the System

(including without limitation the procedures, standards, specifications, and

controls prescribed in the Hotel Design Guide and the SOP Manual) is

essential in order to maintain the exceptional quality and guest service of

MHRS Hotels and enhance public acceptance of and demand for MHRS Hotels; therefore, Franchisee shall operate the Hotel in strict conformity with all aspects of the System[.] ld at 18.

Marketing activities are "designed to increase sales and/or to increase public awareness of MHRS Hotels or the Hotel[.]" !d. at 6-7.

Marriott did not attempt to distinguish the Nassau Marriott Resort that it franchised from premises actually owned ahd operated by Marriott. To the contrary, Marriott required that the franchisee provide information so that the Nassau Marriott would be listed in Marriott's published directory of domestic hotels. Id. at 3, 31.

2.The Toppels' Experience At The Hotel Confirmed That Marriott Controlled the Resort.

At all times, Mr. and Mrs. Toppel believed that they were staying at a Marriott property. Declaration ofRobert Toppel in support of Opposition to Summary Judgment ("Toppel Decl.") at 2. Mr. Toppel received a receipt for breakfast at a restaurant in the hotel. The receipt shows

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that the service provider was "Crystal Sweets, Nassau Marriott Hotel." Id. at ,3, Ex. A. A bill detailing the Toppels' room charges was on Marriott letterhead. Id. at ,5, Ex. C. The Toppels' express check-in and check-out cards both bore the Marriott name. Id. at ,6, Ex. D.

After Mrs. Toppel fell at the hotel, the security supervisor wrote on materials provided to the Toppels. The security supervisor wrote "Leslie Rolle (242) 702-4209 Nassau Marriott." Id.

at ,7, Ex. E. These materials refer to "the Marriott family of hotels" and thank the guests "for

choosing Marriott Hotels, Resorts and Suites." Id. The materials are signed by J.W. Marriott, Jt., the Chairman and Chief Executive Officer ofMarriot. Id.

Later on, the Toppels were contacted by a Bahamian insurance company requesting information about the claim. The letter references "Nassau Marriott Resort" as the insured. Id. at ,8, Ex. F. At no time did the Toppels see any indication that an entity other than Marriott owned, operated, managed, controlled and maintained the hotel.

ARGUMENT I. The Law of New York Applies to this Case.

The Plaintiffs agree with defendants' assertion that the law of the State ofNew York should govern this case.

II. The Summary Judgment Standard

Sulilmary judgment is only appropriate where "there is no genuine issue as to any material fact and[…] the moving party is entitled to a judgment as a matter oflaw." Fed.R.Civ.P. 56(c). A fact is "material" if it "might affect the outcome of the suit under the

· governing law" and an issue of fact is "genuine" where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). On defendants' motion for summary judgment, the evidence must be viewed in

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the light most favorable to the plaintiffs, the nonmoving party, and the Court must resolve all ambiguities and draw all reasonable inferences in his favor. Id. at 255; Cronin v. Aetna Life Ins. Co., 46 F.3d 196,202 (2d Cir.l995).

III. Marriot Exercised Sufficient Control Over the Hotel Premises to be Held Liable.

A.There Are Triable Issues of Fact Regarding Marriott's Control Over the

Nassau Marriott and the Sole Mare Restaurant.

Marriott's contention that it cannot be liable because it franchised the hotel and restaurant is not dispositive and does not warrant summary judgment. The franchise agreement shows that Marriott exercised alinost complete control over the Nassau Marriott Resort and the Sole Mare Restaurant within the hotel. It is well recognized that franchise agreements and clauses are not dispositive. See Matter ofPrancis, 246 A.D.2d 751,752,668 N.Y.S.2d 55 (3rd Dept 1998). The issue for the Court remains one of control and there are disputed issues of fact regarding the extent to which Marriott controlled the premises that make summary judgment inappropriate.

In Hilton v. Holiday Inns, Inc., 1990 WL 113133 (S.D.N.Y. 1990), a court confronted an almost identical situation and ruled that the case must be presented to a jury. Holiday Inns, Inc. moved for surtnnary judgment claiming that it did not own, manage or control the hotel where the plaintiff was injured. The Court denied summary judgment. Like the franchise agreement in this case, all aspects of the hotel in question had to be "maintained in accordance with the high standards of quality and appearance associated with Holiday Inns." Id. at *3. The agreement

also allowed Holiday Inns, Inc., like Marriott, to inspect the premises. Id. at *3. The Court

found that these provisions in the agreement made clear that "Holiday Inns does exercise a certain degree of control over its licensees insofar as it requires each licenseee to conform to certain minimum standards." Id. at *3. At a minimum, whether this control was sufficient to hold Holiday Inns liable was a factual issue to be determined at trial. Id. See also Vaughn v. Columbia Sussex Corp., 1992 WL 18843, *2 (S.D.N.Y. 1992) (In denying summary judgment,

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the Court found that ''Holiday Inn's license agreement[…] guarantees substantial control by the franchisor. Not only is the franchisor involved in the training of hotel employees and construction of the hotel itself, but it may inspect the hotel at any time and order upgrading and rehabilitation pursuant to the franchisor's own standards.")

Here, the franchise agreement shows that Marriott retained the same control over the operation of the Nassau Marriott Resort:

•Marriott in the SOP Manual dictated the hiring process and specified the type of employee to be hired. Defendants Exhibits, Ex. B at 16;

•Marriott controlled the appearance of the hotel employees by requiring that all hotel employees wear uniforms as specified in the SOP Manual. !d. at 17.

•Marriott required that the franchisee renovate the hotel using standards set by

Marriott. Id. at 26.

•Marriott reserved the right to inspect and re-enter the hotel at any time. Id. at 22.

•Marriott reserved the right to inspect the hotel's books, records, accounts and tax returns and demand an audit of same. !d. at 36.

The evidence shows that Marriott exercised substantial control over the actual Sole Mare

Restaurant as well:

•Marriott mandated that certain improvements be made in the Hotel and at the Sole Mare Restaurant, prior to RCPHCL taking possession of the premises, including increasing the lighting at the [Sole Mare] restaurant. Kushlefsky Decl. Ex. E.

•Marriott required that menus and other materials used at Hotel restaurants, including Sole Mare, comply with the style, pattern and design prescribed in the SOP Manual or otherwise approved in advance by Marriott. Id. at p. 21.

The critical factor in determining whether a franchisor can be liable for the negligence of its franchisee is the control the franchisor exercised or the franchisor's right of control. Ahl v. Martin, 82 A.D.2d 938, 440 N.Y.S.2d 748 (3rd Dept. 1981). Marriott is clearly exercising the control that allows a franchisor to be liable for the negligence of its franchisee.

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B.Defendants' Cases Are Distinguishable.

The cases cited by the defendants to support their claim that Marriott cannot be held liable are cases where defendants were not exercising the same degree or level of control as exercised by Marriott in the case before the Court. For example, in Hart v. Marriott Int 'I, Inc.,

304 A.D.2d 1057, 758 N.Y.S.2d 435 (3rd Dept. 2003), the court granted summary judgment for the franchisor because the franchisee (not the franchisor) had its own specific written policy to deal with wet floors and the plaintiffs in the case did not submit any proof of the exercise of the day-to-day control over the management and maintenance of the hotel. In contrast, Marriott exercised control over the hotel and specifically the Sole Mare Restaurant signage (Rosenman Depo.) at 31:23-33:16). Plaintiffs have submitted the testimony ofMarriott's person most knowledgeable witness to show the control over the management and day-to-day maintenance. See Ex. D (Rosenman Depo).

A majority of the other cases cited by defendants involve assault cases implicating issues of security. Def s. Motion at 8-11. The cases do not involve the uniformity of operation and appearance issues relevant to the franchisor, but rather security issues remaining under the dominion ofthe franchisee. In Wu v. Dunkin Donuts, Inc., 105 F.Supp.2d 83, 88 (E.D.N.Y.

2000), the court found that there was no competent evidence to show that the franchisor had assumed control of the security of the franchisee store. The franchisor also did not exercise the same level of control as Marriott. The franchisor in Wu did not have the power to examine and audit the books, accounts and tax returns of the franchisee, nor the power to control the franchisee's hiring practices, as Marriott did. In Wu, unlike the case before the Court, the franchisee was "solely responsible for hiring, firing and training its employees and for making all day-to-day business decisions necessary to run the business." !d. at 91.

The other series of cases presented by defendants deal with gasoline distributor and

supplier agreements. Defs. Motion at 9. These are cases where the oil company merely sold the

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gasoline to the supply station and did not exercise control over the day-to-day function of the station. For example, in Norton v. Cohen, 248 A.D.2d 519, 670 N.Y.S.2d 49 (2nd Dept.1998), the plaintiff failed to establish that franchisor even inspected the premises. None of the cases cited

by defendants confront the extensive control and dominion that Marriott exercised over the daily operation of the Nassau Marriott Resort.

IV. There Are Triable Issues Of Fact Regarding Negligence and Causation.

The defendants claim that they were not negligent in the placement of the menu and that the placement of the menu was not the cause ofMrs. Toppel's fall. The defendants also claim that Mrs. Toppel was responsible for her fall. However, the defendants provide no evidence for any ofthese assertions (Defs. Motion at 11-13) and for most of their claims they provide little or nolaw. !d.

Summary judgment must be denied because summary judgment requires evidence. It is

well established that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v. New York Univ. Medical Ctr., 64 N.Y.2d

851, 853 (NY 1985). The moving party must affirmatively demonstrate the merits of its claim or defense with evidence.

The defendants, however, support their negligence and causation argument as follows: "even though defendants are not liable for the actions of the instant franchisee, the Sole Mare restaurant's decision to place the menu on the wall was neither negligent nor the proximate cause of plaintiffs injury." Defendants' Statement ofMaterial Undisputed Fact No. 15. This, is not a fact, but rather a disputed contention. Merely saying it does not make it so. Defendants are the moving party, they have not met their burden and the motion should be summarily denied.

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A reasonable jury could find that the placement of the menu was negligent and that the placement of the menu caused Mrs. Toppel's fall. The menu was placed to encourage guests to eat at the Sole Mare Restaurant. The menu for the Sole Mare Restaurant was placed at the top of the stairs very near to the edge of the staircase. Ex B (Robert Toppel Depo) at 82:6-13. The menu was placed in a dimly lit area. Ex. A (Glenna Toppel Depo) at 20:2-5. The carpet in this area was patterned and did not delineate the stairs. Ex. C (photo).

The placement of this menu in this area was careless and did not take into consideration the safety of the guests of the hotel. A reasonable jury could easily determine that the hotel owed a duty of due care to its guests, that the hotel violated this duty in placing the menu in an linsafe place and in an unsafe manner and that the placement of this menu caused or contributed to Mrs. Toppel's injury. Summary judgment is thus inappropriate as a matter oflaw.

Negligence, causation and contributory negligence are all questions of fact that must be detertnined by a jury. Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315,414 N.E.2d

666, 670 (N.Y. 1980) ("Because questions concerning what is foreseeable and what is normal

. may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve."); Lamarre v. Rensselaer County Plaza Assoc., 303

A.D.2d 914, 758 N.Y.S.2d 182 (3rd Dept. 2003); ("[I]t is generally a question of fact whether a dangerous or defective condition exists[.]"); Exxon Co., USA. v. Sofec, Inc., 5517 U.S. 830,

. 840·:.41 (1996) ("The issues of proximate causation and superceding cause involve application of law to fact, which is left to the factfinder, subject to limited review."); American Tissue, Inc. v. Donaldson, 351 F.Supp. 2d 79, 91 (S.D.N.Y. 2004) ("causation generally remains an issue of

fact for the jury"); Lein v. Czaplinski, 106 A.D.2d 723, 725, 484 N.Y.S.2d 154, 156 (3rd Dept.

1984) ("questions of causation[…] can rarely be ruled on as a matter oflaw."); Olmoz v. Wal­ Mart Stores, Inc. 11 Misc.3d 1084(A), 816 N.Y.S.2d 698 (NY Sup. 2006) ("A determination of

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whether plaintiff is contributorily negligent is almost invariably a question of fact, and is for [a]

jury to determine in all but the clearest cases.").

V. Apparent Authority Also Remains a Viable Claim.

The defendants did not move for summary judgment on the issue of apparent authority, so, in addition to Plaintiffs' active agency claim, the Plaintiffs' apparent agency claim remains. Marriott knowingly and intentionally led the public and the Toppels to believe that they were staying at a Marriott owned and operated hotel. Thus, Marriott may also be liable for its franchisee's negligence under a theory of apparent authority. In Sims v. Marriott Int 'l, Inc., 184

F.Supp.2d 616 (W.D. Ky. 2001), a court dealt with an injury sustained at the very same Nassau Marriott. The court denied defendant's motion for summary judgment finding that "a reasonable jury could conclude that the Nassau Marriott was the apparent agent ofMarriott." Id. at 617.

New York cases also support the apparent agency doctrine. See Kirkaldy v. Hertz Corp.,

221 A.D.2d 599, 600-601, 634 N.Y.S.2d 177 (2nd Dep't 1995) ("There are triable issue of fact as to whether the Hertz Corporation, by allowing [franchisor] to use its name, logo and advertise itself as a Hertz establishment, clothed the car rental agency with apparent authority."); see also Fogel v. Hertz Int'l, Ltd., 141 A.D.2d 145, 529 N.Y.S.2d 484 (1st Dep't 1988). Marriott, one of the world's most successful and recognizable hotel chains, intended to create the appearance of agency and wanted guests like the Toppels to believe that Marriott operated and controlled the Nassau Marriott.

Ill

Ill

(-13-) (#113393-1)

CONCLUSION

Forthe reasons stated above, defendants' motion for summary judgment should be

denied.

Dated: New York, New York

February 29, 2008

)72)

10017

(-14-) (#113393-1)

CERTIFICATE OF SERVICE

(h)I, Therese Stevens, hereby certify under penalty of peijury that a true copy of the following has been served on this 281 day of February, 2008 via Federal Express upon James Musurca, Esq., Babchik & Young, LLP, 200 East Post Road, 2nd Floor, White Plains, New York

10601

• Plaintiffs' Opposition to Defendants' Motion for Summary Judgment:

• Plaintiffs' Opposition to Defendants' Statement of Material Facts and Plaintiffs'

Statement of Additional Material Facts

• Declaration of Noah Kushlefsky in Support of Plaintiffs' Opposition to

Defendants' Motion to for Summary Judgment

• Declaration of Robert Toppel in Support of Plaintiffs' Opposition to Defendants'

Motion to for Summary Judgment