AMENDED DECISION This personal injury action was assigned to this court for inquest on April 15, 2019. Plaintiff Simone King is seeking a judgment for damages arising from claimed negligence by Defendant from an assault upon her on June 18, 2016, at Defendant’s restaurant. The verified complaint is dated September 6, 2016, and is verified by counsel, not the plaintiff, as counsel’s office is in a different county than the one in which plaintiff resides. Defendant DON COQUI HOLDING COMPANY, LLC has not appeared in this action or answered the verified complaint. Thus, all the traversable allegations contained in the complaint have been admitted due to the defendant’s default (Green v. Dolphy Construction Co. Inc., 187 AD2d 635 [2d Dept 1992]). The complaint alleges two causes of action. The first is that defendant provided negligent security at its establishment, in allowing co-defendant Shepard to assault plaintiff. The second is that defendant negligently hired co-defendant Shepard. At the inquest, plaintiff Simone King testified. She stated that on the date in question, she was at the Defendant’s bar, “Don Coqui”. The bar was crowded, and there were people dancing to loud music. Plaintiff encountered Sierra Shepherd-known to her-and the two argued over King’s boyfriend. The argument culminated with Shepard striking plaintiff in the face with an open hand, breaking her glasses. She stated that Don Coqui’s security played no role in preventing the assault, nor doing anything after it. During King’s inquest testimony, there was no statement whatsoever that Shepard worked at Don Coqui, nor that she was wearing a Don Coqui uniform, nor other indicia of being employed there. Frankly, the second cause of action for negligent hiring appears to be either pleaded in error or untrue. Next, with respect to negligent security, the court needs to see any “prima facie proof of a cause of action”, or proof of “a viable cause of action” (see Silberstein v. Presbyterian Hosp., 96 AD2d 1096 [2d Dept 1983] and CPS Group, Inc. v. Gastro Enters. Corp., 54 AD3d 800, 801 [2d Dept 2008]). The verified complaint states in the vaguest of terms, that Defendant Don Coqui had a duty to maintain the premises in reasonable safe condition, and to provide security to keep it reasonably safe, and that plaintiff was caused to be assaulted as a result of negligence of Don Coqui (Verified Complaint, at paragraphs 27-29). Next, in support of the default judgment, plaintiff submitted an affidavit. That affidavit gives one and only one statement regarding the underlying incident itself: “while I was lawfully and properly present at the said defendant’s establishment located at 107 Mamaroneck Avenue, White Plains, New York, I was assaulted and battered” (Affidavit of Simone King, at paragraph 5). The testimony of the plaintiff provided no insight into how the defendant Don Coqui was negligent. The fact that the bar was crowded, loud and there was dancing, does not establish breach of duty or negligence. Nor did the plaintiff testify that she had in some way sought assistance or protection from Don Coqui staff, against a threat posed by Shepard, and that they ignored her. Plaintiff merely stated that she and Shepard, with whom she was acquainted, argued verbally, and then Shepard struck her. Nothing in her testimony gave any indication that she or anyone else perceived that the slap was coming, because presumably if she had, she would have acted to avoid it. Essentially, the court has only an attorney’s verification on a complaint that sets forth causes of action unsupported by the plaintiff’s testimony. With all of these deficiencies set forth above, the consistent position taken by the Second Department is that once a default judgment is entered, liability is no longer able to be considered by the court, and it is error to consider whether the defendant actually caused the damages sought (Gonzalez v. Wu, 131 AD3d 1205 [2d Dept, 2015]; Kuoho v. Trump Vil, Section 4 Inc., 93 AD3d 761 [2d Dept, 2012]). Therefore, despite harboring serious misgivings about Don Coqui’s actual liability, this court is constrained to consider only damages. However, in this case, there were two named defendants. The actual assault and batterer (Shepard) settled with the plaintiff just before the inquest was held. The court must necessarily allocate damages between these two defendants, which means that causation must be examined in the context of the two defendants. In other words, negligence and proximate cause have been determined by the default of the defendant, but allocation of damages is typically considered by a jury after liability has been found, and just prior to setting a figure for damages. According to the verified complaint, defendant Shepard’s acts were the cause of her injuries (Verified Complaint at paragraphs 40, 42, 43). Likewise, plaintiff’s testimony supports the fact that Shepard’s tort was the primary cause of the injuries. Thus, while liability of Don Coqui has been established, without additional evidence of the notice that the security staff had of the impending slap, or some evidence to highlight the recklessness of its hiring of defendant Shepard (whose employment by Don Coqui was never mentioned by plaintiff, nor a violent criminal past, if any), there is no reason to conclude that Don Coqui’s liability for plaintiff’s injuries in any way compare to that of the assaulting defendant, Shepard. The court assesses 95 percent liability to Shepard, and 5 percent liability to Don Coqui. As to damages, the plaintiff claims the attack resulted in severe injury, nervous shock, mental anguish, physical pain and emotional trauma. She additionally claims that she has become permanently disabled. She claims that she will incur future medical expenses. Shortly after the attack, she visited the White Plains Hospital Emergency Room. The records show that plaintiff had a prior history of uveitis in her left eye. There was no damage to the Plaintiff’s facial bone structure. She testified that she has had to go to the eye doctor on more than ten occasions, takes steroid drops to relieve pressure, and she underwent a “Laser SLT” procedure approximately one year after the injury. She stated that she cannot wear contact lenses as much as she used to, and still suffers blurry vision. The medical records in evidence reflect a visit to White Plains Hospital on June 18, 2016 at 5:00 A.M; and visits with Weill Cornell Medicine on June 21, 2016, June 24, 2016, July 8, 2016, and July 22, 2016. Plaintiff claims $100,000 in damages. While the plaintiff testified credibly, there is no medical record to reflect the “Laser SLT” procedure, and she does not appear to be out of pocket for any of the medical services she has received. Likewise, no lost earnings have been claimed. Therefore, no medical expenses or lost earnings are awarded, and the court will only consider her past pain and suffering and future pain and suffering. With respect to both past and future pain and suffering, there are no medical records in the record after July 22, 2016, which is just over one month from the injury. The plaintiff also had uveitis prior to the injury, which previously caused her some eye issues. The court credits her testimony, in that she was clearly traumatized by the attack, she certainly had short term pain and discomfort, and she still suffers long term blurred vision. The court finds that $15,000 is appropriate for past pain and suffering, and that $20,000 is appropriate for future pain and suffering. Defendant Don Coqui is responsible for five percent (5 percent) of those amounts. Plaintiff shall submit a judgment on notice to defendant, within 20 days of the entry of this decision and order. This constitutes the decision and order of the court. Dated: September 3, 2019 White Plains, New York
