(Case 1:03-cv-03042-DCF Document 25 Filed 09/06/06 Page 1of 6)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
GLENNA TOPPEL and ROBERT TOPPEL,:
Civil Action No. 03-CV-3042 (DAB)
SECOND AMENDED COMPLAINT
MARRIOTT INTERNATIONAL, INC., MARRIOTT WORLDWIDE CORPORATION,
Trial By Jury
SEP 0 6 Z006
U.S.D.C. S.D. N.Y.
Plaintiffs, GLENNA TOPPEL and ROBERT TOPPEL, by their attorneys, Kreindler
& Kreindler and Kramer & Shapiro, as and for their complaint, respectfully allege upon information and belief:
JURISDICTION AND VENUE
1. Plaintiffs GLENNA TOPPEL and ROBERT TOPPEL are citizens and residents of the State of New York.
2. Defendant Marriott International, Inc. (hereinafter "Marriott") is a corporation organized and existing under the laws of the State of Delaware, which maintains its principal place of business in Bethesda, Maryland. Marriott conducts substantial business in the State of New York and within this District.
3. Defendant Marriott Worldwide Corporation (hereinafter "Marriott Worldwide") is a corporation organized and existing under the laws of the State of Maryland, Which maintains its principal place of business in Bethesda, Maryland. Marriott Worldwide is a subsidiary of Marriott and 100% of its stock is owned by Marriott. Marriott Worldwide is a mere department of Marriott or in an agency relationship with Marriott, and, therefore, conducts substantial business in the State of New York and within this District.
4. Jurisdiction with respect to defendants Marriott and Marriott Worldwide is founded on diversity of citizenship, 28 U.S.C. § 1332, in that plaintiffs are residents of the State of New York; defendant Marriott is incorporated in the State of Delaware and
defendant Marriott Worldwide is incorporated in the State of Maryland; and the amount in controversy exceeds the sum of $75,000 excluding interest and costs.
5.Venue in this District satisfies the requirements of 28 U.S.C. § 1391, in that
defendants conduct substantial business in this district and are subject to personal jurisdiction within this district.
6. At all times mentioned herein, defendant Marriott was and is in the business of owning,operating, managing, controlling and/or maintaining, by and through its servants, agents, and/or employees, hotel and/or casino establishments, and as such, it owned, operated, managed, controlled, and/or maintained the Nassau Marriott Resort and Crystal Palace Casino in Nassau, the Bahamas (hereinafter, "the Nassau Marriott").
7. Defendant Marriott owns, operates, manages, controls and/or
maintains Sole Mare, a restaurant within the Nassau Marriott and the area immediately adjacent to the restaurant.
8. At all times mentioned herein, defendant Marriott Worldwide was and is in the business of owning, operating, managing, controlling, maintaining, and/or franchising, by and through its servants, agents, and/or employees, hotel and/or casino establishments, and as such, it operated, managed, controlled, and/or maintained the Nassau Marriott Resort and Crystal Palace Casino in Nassau, the Bahamas (hereinafter, "the Nassau Marriott").
9. Defendant Marriott Worldwide operated, managed, controlled and/or maintained Sole Mare, a restaurant within the Nassau Marriott and the area immediately adjacent to the restaurant.
10. On or about January 30, 2002, plaintiffs Glenna Toppel and Robert Toppel were guests staying at the Nassau Marriott.
(- 2 -)
AS AND FOR A FIRST CAUSE OF ACTION ON BEHALF OF PLAINTIFF GLENNA TOPPEL FOR PERSONAL INJURIES BASED ON NEGLIGENCE
11. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1-10 as if fully set forth at length herein.
12. On and prior to January 30, 2002, defendants posted or caused to be posted
a display board holding the menu for the Sole Mare restaurant, outside of the restaurant and near the top of a staircase adjacent to Sole Mare.
13. On or about January 30,2002, plaintiffs Glenna Toppel and Robert Toppel were viewing the dinner menu for Sole Mare when plaintiff Glenna Toppel moved to get a better view and toppled down the stairs.
14. Defendants owed plaintiffs a duty to ensure that the hotel was safe, not unreasonably dangerous, and did not present an unusual risk of harm
15. Defendants breached their duty of reasonable care by negligently, carelessly, and recklessly creating a dangerous condition by placing the dinner menu for the restaurant by the staircase in a dimly lit area and the breach caused plaintiff Glenna Toppel's personal injuries.
16. Defendants caused or created the dangerous condition and/or had actual or constructive notice of the dangers associated with the placement of the dinner menu atop a flight of stairs which caused or contributed to the incident which resulted in Glenna Toppel being seriously injured.
17. Defendants themselves and/or by their officers, agents, employees, servants and representatives, were careless and negligent and breached their duties and responsibilities, in thatthe defendants negligently, carelessly, and recklessly selected and posted the menu board at the top of a flight of stairs; negligently, carelessly, and recklessly maintained and controlled the area adjacent to the Sole Mare restaurant; failed to use the requisite degree of care, caution and prudence in the selection, posting, maintenance and
(- 3 -)
control of the area adjacent to Sole Mare that the circumstances required; failed to notice, observe, and correct the dangerous condition of the staircase and the dangerous location of the menu board; posted the menu board without regard for the safety and well-being of guests in the area; failed to provide adequate notice or warning of the hazard of the dangerous condition; failed to provide adequate lighting in the area adjacent to the menu board and Sole Mare; failed to adequately mark the steps leading to the memo board and Sole Mare; failed to install handrails or bannisters on the stairs; and the defendants were otherwise careless and negligent.
18. Defendants had actual or constructive knowledge that the positioning of the
dinner menu at the top of a flight of stairs posed a danger to guests who wished to view the menu.
19. On or about January 30, 2002, defendants were responsible for the safe
operation of the Nassau Marriott and had a duty imposed by law to use proper care and caution to protect their guests.
20. The dangerous and defective situation referred to above and the failure of defendants to exercise the level of care appropriate and reasonable under the circumstances to the Nassau Marriott hotel administration was the proximate and legal cause of the injuries sustained by plaintiff Glenna Toppel.
21. That by reason of all the foregoing, and the carelessness, negligence and
recklessness of the defendants, plaintiff Glenna Toppel suffered severe and permanent physical injuries to her face, arms, back, legs, and torso; sustained a left distal radius fracture and left medial malleolar fracture; suffered and will continue to suffer serious and permanent physical and mental pain and suffering and severe mental anguish; all of which require continued treatment; and she will continue to incur future expenses therefrom; has suffered loss of earning and earning capacity and loss of enjoyment of life; and Glenna Toppel was otherwise injured.
22. As a result of the foregoing, Plaintiff Glenna Toppel has been damaged in the amount of One Million ($1,000,000) Dollars.
AS AND FOR A SECOND CAUSE OF ACTION FOR
LOSS OF CONSORTIUM AND SERVICES BY ROBERT TOPPEL
23. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1 through 22 as if fully set forth at length herein.
24. Plaintiff Robert Toppel is the lawful husband of plaintiff Glenna Toppel.
25. As a result of the bodily and mental injuries and disabilities suffered by plaintiff Glenna Toppel, plaintiff Robert Toppel has been deprived of the services, society, advise, counsel, companionship, and consortium of his wife Glenna Toppel.
26. As a result of the foregoing, Plaintiff Robert Toppel has been damaged in the amount of Two Hundred and Fifty Thousand ($250,000) Dollars.
WHEREFORE, plaintiff Glenna Toppel demands judgment against the defendants in the sum of One Million ($1,000,000) Dollars, and Plaintiff Robert Toppel demands judgement in the sum of Two Hundred and Fifty Thousand ($250,000) Dollars, together with the costs and disbursements of this action.
DEMAND FOR JURY TRIAL
Plaintiffs demand a trial by jury on all claims in this action.
Dated: New York, New York
August 29, 2006
Repsectfully submitted: KREINDLER & KREINDLER
Michael A. Shapiro, Esq. KRAMER & SHAPIRO, P.C.
80-02 Kew Gardens Road, Suite 302
Kew Gardens, New York 11415
Attorneys for Plaintiff