The following numbered papers were read on this motion: NYSCEF Document Numbers 40-50 (notice of motion, affirmation in support, exhibits, statement of material facts, affidavit of service); surveillance video NYSCEF Document Numbers 51-53 (affirmation in opposition, statement of material facts, stipulation of adjournment) NYSCEF Document Numbers 54 (reply affirmation, affidavit of service) DECISION AND ORDER Upon the foregoing papers and having heard oral argument on the record, the within motion is determined as follows. This is a motion for summary judgment by Defendants seeking summary judgment dismissing Plaintiff Cecil Gibbs’s (“Gibbs”) complaint in its entirety as a matter of law. Gibbs’ complaint in this action alleged that Defendant Azizullah Nasiry (“Nasiry”) caused personal injuries to Gibbs through recklessness, carelessness, and negligence. On October 18, 2017, Nasiry was employed by Defendant 1429 Food Corp. d/b/a Kennedy Fried Chicken. 1429 Food Corp. is a small storefront eat-in and takeout chicken restaurant located at 1429 Nostrand Avenue in Brooklyn, New York. Nasiry was employed in the capacity of store manager. (NYSCEF Doc Nos. 49, 52, statements of material facts) The restaurant had a glass security partition, similar to glass partitions found in banks. The purpose of the partition was for the safety and security of the restaurant employees as there had been robbery attempts at the restaurant in the past. On one side of the partition was the customer area where customers approached the counter to order their food and sit down and eat in the restaurant if they preferred. On the other side of the partition was the employee area which included the counter, cash register and kitchen. The partition had an opening used to give customers their food and to exchange money with customers. The opening in the partition was at the top of the counter. The opening was large enough for a person to hop up on the counter and jump through. (NYSCEF Doc Nos. 49, 52, statements of material facts) There is a dispute between Plaintiff Cecil Gibbs and Defendants over what transpired in the afternoon of October 18, 2017, which led to the instant action. Defendants assert that Gibbs, a large man, entered the store, approached the counter, and immediately began to curse Nasiry out in a very aggressive, menacing and threatening way. As Gibbs cursed Nasiry out, Gibbs placed a $20 bill on the counter and demanded that Nasiry provide plaintiff change of a $20 bill. Nasiry told Gibbs that he would not give him change. Nasiry did not have change to spare and additionally it was not Gibbs’s turn to be served. There were other customers in front of Gibbs. Additionally, given how belligerent Gibbs was acting, Nasiry feared that Gibbs’s asking for change was just a ploy in order to get Nasiry to open the cash register so that Gibbs could snatch and grab money from the restaurant in a robbery attempt. At no point did Gibbs order any food from the restaurant nor make any purchases. (NYSCEF Doc No. 49, Defendants’ statement of material facts) Defendants assert further that when Nasiry advised Gibbs that he would not give him change, Gibbs got even more hostile and belligerent. and continued to curse Nasiry out and speak racial epithets at him. Gibbs then proceeded to get very violent, aggressive, and combative. Gibbs assaulted Nasiry by punching him in the arm through the opening in the glass partition. Gibbs then began to threaten to kill Nasiry. Nasiry feared for his life and believed fully that Gibbs intended to follow up on the threat to kill him. Gibbs hopped up on the counter and was in the process of jumping through the opening in the glass partition. Half of Gibbs’s body was through the opening in the partition. One of the other customers in the restaurant grabbed Gibbs in an attempt to pull the latter out of the opening in the glass partition but to no avail. Gibbs was making his way through the opening in the glass security partition. Fearing for his life and safety, Nasiry grabbed a knife from behind the counter in self-defense. Nasiry showed the knife to Gibbs. Nasiry did not believe that the knife came into contact with Gibbs. Even if the knife came into contact with Gibbs, it was done in self-defense of Nasiry, who was under imminent threat from Gibbs, who had already physically assaulted him and was now jumping through the opening in the glass security partition. Nasiry believed that Gibbs was about to kill him. (NYSCEF Doc No. 49, Defendants’ statement of material facts) Gibbs presents a different perspective of the interaction between himself and Nasiry. Gibbs asserts that Nasiry grabbed Gibbs’s right hand. Gibbs gave Nasiry a $20 bill and Nasiry ripped it up, throwing the pieces at him. Nasiry did not permit his co-worker behind the partition to defuse the situation. Although the restaurant has a rear exit, Nasiry did not retreat to it. Gibbs was not on the counter when Nasiry thrust the knife toward him. Gibbs received four stitches on his arm. (NYSCEF Doc No. 52, Plaintiff’s statement of material facts) Pertinent testimony from Gibbs’s deposition transcript (NYSCEF Doc No. 47, at 31-34) includes the following: Q. So, what happened before the employee can make change? A. I said, “you have change now?” Q. What happened after that? A. He rips the money up. He starts ripping it up. Q. Do you know why? A. I believe it’s because he got caught being nasty. Q. When you say, “rip it up,” you mean rip it in half? A. Rip it in pieces. Q. What, if anything, did you do in response to that? A. I made an attempt — that’s when you see me on the counter like trying to, you know, trying to jump over, but I didn’t jump over. Q. What was your purpose in trying to jump over? A. I wasn’t trying to jump over. I was upset, and I knew I couldn’t jump over there. Q. What were you attempting to do? What was your point in doing that? A. There was no point. I was upset. He is ripping my money up Q. Were you intending to attack? A. No. Q. Or to hit or fight or something like that? A. No. Q. Did you give the impression in jumping up on the counter that you were intending to get involved in an altercation? A. Maybe. Q. Okay. Now, did you ever swing sort of like a punch or a slap, swing at the gentleman behind the counter? A. Yes. Q. Okay. For what purpose? A. He hit my hand. Q. How did he hit your hand? A. With his hand. Q. How did he hit your hand? A. With his hand. Q. Slapping or punching? A. Yes, slapping. Q. At some point, was a knife involved? A. Yes. Q. Did you observe the knife? A. Yes. Q. By the way, this employee behind the counter, could you describe his physical attributes, approximately what age? A. Looks to be about 30. … Q. Now, where did this employee get the knife from? A. The back of the store. Q. Were there any other words or exchanges between you and he before he got the knife other than what you have already said? A. No. Q. What did the employee do with the knife? A. He swung it at my face. Q. Did the knife strike you? A. Yes. Q. Where at? A. On my elbow. … Q. Were you bleeding? A. Yes. Q. From where? A. The elbow. Pertinent testimony from Nasiry’s deposition transcript (NYSCEF Doc No. 46, at 50-97) includes the following: Q. What did he first say to you? A. He say I have to give them change. Q. Did he say you have to give him change, or did he ask you for change? A. No. He — he said that I have to give him change. Q. Where was he in relation to yourself when he asked you for the change? A. He was in front of the counter. … Q. How did you respond to Mr. Gibbs when he said you had to give him change? A. I ignore him. Q. Is there any particular reason why you ignored him? A. Because he cross the other two customers. They was before of him. … Q. And how did he respond after you said you did not have enough change? A. I just put $20 in front of him and I told him, I’m sorry, I have no change. … Q. Did he respond to you after that? A. After that, he start cursing me. Q. What did he say exactly? … A. — that’s you motherf____r doing your business, and we have no — and you have no change for us. You have no change for me? … Q. Did you give Mr. Gibbs the same $20 or a different $20? A. No, the same $20. Q. How did you give him back the $20 bill? A. When he jump on the counter and he hit on my shoulder (indicating.) So I grab his money and I throw to him. … Q. Crumbled it? A. Yeah, in my hand. Q. Did you rip it? A. No, not rip. Q. What did he say to you after you threw the crumbled $20 bill at him? A. And he jump again on the counter. Q. What did you do after you saw that? A. I just — I scare from him, and I just — I ran to back. … Q. Before running back to the front, did you do anything else. A. I just took a knife. … Q. Did you ever swing that knife towards Mr. Gibbs? A. Just one time. Q. Why did you swing that knife to Mr. Gibbs? A. Just to scare him to not come inside the store. … Q. As you swung the knife towards Mr. Gibbs, did the knife make any contact with any part of Mr. Gibbs’ body? A. No. That so far from him. The portion of the store’s video surveillance which recorded the incident acknowledged by the parties to depict the events which are the subject of this action — was viewed by this Court. There was no audio — only video. At the outset it showed two customers (a man and a woman) standing in front of the opening in the glass security partition. A bill is on the counter. The woman stepped aside. Gibbs approached the opening. He stuck his right through it. He placed his arm on the counter. Nasiry placed a bag with something in it on the counter and took the bill in his hand. Nasiry moved the bill on the counter toward Gibbs, leaving the bill on the counter in front of Gibbs. Gibbs pushed the bill on the counter back toward Nasiry. Gibbs pointed to the bill. Gibbs handed the bag to the male customer. Nasiry pushed the bill on the counter toward Gibbs. Nasiry took the bill and shook his head. Gibbs and Nasiry argued. Nasiry sought to return the $20 bill, now in folded form, back to Gibbs. Gibbs snatched it from Nasiry, making contact with Nasiry’s hand. Nasiry pointed to the male customer. They argued more. The male customer grabbed Gibbs’s left arm. Gibbs placed the bill on the counter. The bill was pushed forward by Nasiry and landed on the floor. Nasiry picked it up and, with his left hand, attempted to give it to Gibbs. Gibbs swung his right hand at Nasiry. He put both hands through the partition. The male customer tried to restrain Gibbs. Gibbs had both hands on the counter as Nasiry crumpled the bill and threw it back toward Gibbs. Nasiry was now out of the picture. Gibbs propelled his upper body through the partition opening. His head was past the counter portion closest to the cashier area. His belt was under the glass partition above the opening. Gibbs’s left foot was elevated as he tried to balance himself to go all the way through the opening. As the male customer pulls Gibbs back onto the floor, Nasiry appears, brandishing the knife in his right hand. It did not appear that the knife made contact Gibbs but if it did it was slight. The male customer walked to the front of the store. Gibbs returned to being at the counter. The male customer returned to the counter with several bills. The male customer handed the bills across the counter toward the cashier area. Gibbs’s hand was over the counter and moving. Nasiry took money from the male customer, who placed his hand in front of Gibbs. The male customer walked toward the front of the store. A second male customer enter the store (the number 76 was on his shirt). Gibbs argued with Nasiry as Nasiry handed the female customer a bag. Gibbs looked at his right hand. The female customer left the store. Gibbs returned to the counter. The video continued with Gibbs and Nasiry arguing. Nasiry looked at his elbow. The video continued but the salient portion has been described. In its motion for summary judgment dismissing the Plaintiff Gibbs’s complaint, Defendants argue that Nasiry acted in self-defense, and that his actions were reasonable and justifiable in light of the imminent danger presented by Gibbs. “Nasiry could not perceive plaintiff’s force nor anticipate the precise effect of his act to be excessive. Additionally, plaintiff began to curse out Nasiry and speak racial epithets at him. Plaintiff then proceeded to get violent, aggressive, and combative at Nasiry, including punching him in the arm through the opening in the glass partition. At that time, Plaintiff also threatened to kill Nasiry and was looking for a way to get behind the glass partition where Nasiry was standing. As soon as plaintiff jumped through the glass partition threatening to kill Nasiry, Nasiry grabbed a knife from behind the counter and acted in self-defense. However believes the knife never came into contact with plaintiff.” (NYSCEF Doc No. 41, affirmation in support of plaintiff, para. 50) In opposition, Plaintiff Gibbs has argued first that Defendants’ statement of material facts contained disputed matters, which contravened 22 NYCRR 202.8-g. I reject this argument inasmuch the rule provides that the “court may direct” such a statement (22 NYCRR 202.8-g [a]). This Court has not directed the submission of a statement of material facts. In any event, for good cause shown, the Court may waive compliance with this rule (see 22 NYCRR 202.1(b)). In this instance, the deposition transcripts and the affirmations and affidavits, as well as the video sufficed to provide the facts to this Court. Gibbs has also argued that Nasiry was the initial aggressor — that Nasiry grabbed Gibbs’s hand (NYSCEF Doc No. 51, para. 23). This is belied by the video evidence. In fact, it was Gibbs who twice menaced Nasiry with his hand. Gibbs argued further than Nasiry should have retreated or disengaged from the confrontation, yet continued to be the aggressor by ripping up Gibbs’ money and throwing it at him (id., para. 24) In fact, the video does not show that what was flung at Gibbs was torn up money. Actually, Gibbs’ money had been returned to him and it fell on the floor of the customer area. Whatever Nasiry flung at Gibbs was a different bill which Nasiry had retrieved from somewhere in the store on his side of the partition. Gibbs has argued that Nasiry swung the knife at Gibbs while Gibbs was standing on the floor on other side of the partition (id.). While the video does not show Nasiry’s position as Gibbs’s body is through the opening in the partition, it is obvious that Nasiry is facing him as immediately thereafter Nasiry brandishes the knife. So, the beginning of the act of brandishing occurred while Nasiry was still over the counter on the cashier side. Contrary to Gibbs’s position that Nasiry was the “initial aggressor” (id., para. 25), the video demonstrates that the initial aggressor was Gibbs, who menaced Nasiry twice with his hand. It was Gibbs who initiated aggression because Nasiry would not give him change for his $20 bill. There are no issues of fact as to who initiated aggression here. It was Gibbs. “It is axiomatic that summary judgment is a drastic remedy which should only be granted if it is clear that no material issues of fact have been presented” (Celardo v. Bell, 222 A.D.2d 547, 548, [2nd Dept 1995)]. “[T]he 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 demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). In Reed v. New York & Q.C. Ry. Co., 116 AD 709 (2d Dept 1907), it was held that an employee may use force to protect himself. In that case, the employee was a train conductor. A passenger had made a demand for a transfer ticket. The conductor denied the request because the passenger had not paid a fare. The passenger took hold of the leg or legs of the conductor. Blows were exchanged. The passenger was the initiator of physical violence at a time when the conductor was about his business, noted the court. The trial court verdict granting damages to the passenger was reversed by the Appellate division. In the case at bar, Nasiry was going about his business of serving people at the counter of a fast-food chicken joint when Gibbs became violent merely because Nasiry would not give change for a $20 bill. The video showing Gibbs propelling himself across the counter through the open area of the glass safety partition is striking. Seeing this, Nasiry brandished the knife. Any injuries sustained by Gibbs were due to his initiation of aggression and physically threating actions. This screenshot from the video demonstrates how far Gibbs got himself through the partition opening. One can see that his head is past the counter in the employee’s area and very close to the cash register under the counter: It was Gibbs who initiated the entire dispute when he would not take no for an answer with respect to seeking change for a $20 bill. Gibbs escalated the situation with his striking Nasiry. One who is faced with an attack fraught with personal danger, however, is not required to assume an attitude of detached reflection concerning the means and the force which are proper to the occasion for repelling the attack. The failure to comprehend precisely the effect of a blow does not deprive a person of the right to justify an act as self-defense unless it appears that the person intended to inflict unnecessary injury or knew or should have known that the force employed was excessive. (See Dupre v. Maryland Management Corp., 283 A.D. 701 [1st Dept 1954]). The video established that Nasiry acted reasonably, considering the threat faced from Gibbs. Nasiry brandished the knife but did not propel it deeply at Gibbs. At most Gibbs sustained a minor cut requiring a few stitches. Moreover, Nasiry was not required to retreat, considering that there was another employee present (see People v. Aiken, 4 NY3d 324 [2005]). Marco, the cook, was also on the premises (NYSCEF Doc No.46 at 21). Nasiry’s attempt to get behind the glass safety partition endangered Marco also and Nasiry’s retreat out of the premises would have further endangered Marco. In researching the Penal Law, this Court finds that Gibbs’ actions potentially constituted violations or crimes. In striking Nasiry, Gibbs was likely in violation of Penal Law sections 120.00 (1) (assault in the third degree), 120.15 (menacing in the third degree), and 240.26 (1) (harassment in the second degree). In propelling himself through the partition open, Gibbs was likely in violation of Penal Law sections 140.05 (trespass), 140.10 (criminal trespass in the third degree), 140.20 (burglary in the third degree), and 110/120.00 (1) (attempted assault in the third degree). In fact, Gibbs himself testified that he might have given the impression in jumping on the counter that he intended to get involved in an altercation (NYSCEF Doc No. 47 at 32, lines 14-17). He conceded swinging at Nasiry (id., lines 18-21). These concessions are significant as they inculpate him in egregious wrongdoing. The courts of this state have established a rule that one may not profit through one’s own wrongdoing. Riggs v. Palmer, 115 NY 506 (1889) is often cited for this proposition. More recently, the question arose whether someone injured in the course of engaging in wrongdoing can avail himself of the comparative negligence doctrine. In Barker v. Kallash, 63 NY2d 19 [1984], aff’g 91 AD2d 372 (2d Dept 1983), the court held that the wrongdoer could not if his activity constituted a serious violation of the law. The Barker facts were that someone who was injured in the course of making a pipe bomb sought recovery for injuries sustained when firecrackers or a container created from firecrackers exploded; the gunpowder from the firecrackers was to be used in the bomb. As applied to the case at bar, this means that Gibbs may not recover for any injuries possibly sustained when cut by the knife brandished by Nasiry during a dispute in which Gibbs assaulted Nasiry and menacingly propelled himself through the safety partition’s opening. This Court holds that it matters not who initiated the dispute. The point is that Gibbs committed wrongful intentional or criminal acts. Any injuries resulting therefrom are noncompensable. (See Carr v. Hoy, 2 NY2d 185 [1957]; Stone v. Freeman, 298 NY 268 [1948]; Riggs, 115 NY 506; Barker, 91 AD2d 372). Accordingly, it is hereby ORDERED that Defendants’ motion for summary judgment dismissing the complaint is granted. For Clerk’s use only MG ____ MD ____ Motion Sequence # Dated: March 9, 2023
