Kalinkina v. Martino Cartier Enterprises, LLC et al

Filing 48

OPINION re: 28 MOTION to Dismiss filed by Bearsheart LLC, Martino Cartier Enterprises, LLC : Based upon the conclusions set forth above, the motion to dismiss defendants Cartier Enterprises and Cartier Salon is granted, and the motion to dismiss the Plaintiff's negligence and gross negligence claims is denied. (Martino Cartier Enterprises, LLC and Martino Cartier Salon Washington TWP LLC terminated.) (Signed by Judge Robert W. Sweet on 6/20/2017) (jwh)

UNITED STAT ES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------- - ----------- -- ----------- - -- - - x
MICHELLE KALINKINA ,
Plaintiff ,

16 Civ . 833 1 (RWS)
OPINION

- againstMARTINO CARTIER ENTERPRISES , LLC ,
MARTINO CARTIER SALON WASHINGTON
TWP LLC , MARTINO CARTIER , and
BEARSHEART LLC ,
Defendants .

--- - --------------------------- - ------x
A P P E A R A N C E S:
Attorneys for Plaintiff
BRUCE MONTAGUE & PARTNERS
212 - 45 26 t h Avenue
Bayside , NY 11360
By : Craig I . Gardy , Esq.

Attorney for Defendants
LAW OFFICES OF TOBIAS & KUHN
100 William Street , Suite 920
New York , NY 1 0038
By : Gail Mota , Esq .
WHITE FLEISCHNER & FINO LLP
1527 Franklin Avenue
Mineola , NY 11501
By : Wendy K. Cardali , Esq .

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USDCSD1 Y
DOCUMEN'T'

EI..ECTPOi rTC:'\LLY FILED
-r C #:
DATEFlLED:

Sweet, D.J.

Defendants Martino Cartier (" Cartier " ) , Martino
Cartier Enterprises , LLC (" Cartier Enterprises " ) , Martino
Cartier Salon Washington TWP LLC (" Cartier Salon " ) , and
Bersheart LLC (" Bersheart " )

(collectively , the " Defendants " )

have moved to dismiss the First Amended Complaint of plaintiff
Michelle Kalinkina (" Kalinkina " or the " Plaintiff " ) pursuant to
Rule 12(b) (6) of the Federal Rules of Civil Procedure. As set
forth below , the motion is granted in part and denied in part.

I.

Prior Proceedings

Kalinkina instituted this action on October 26 , 2016
and filed her First Amended Complaint (" FAC " ) on January 20 ,
2017 , alleging negligence and gross negligence against the
Defendants . The instant motion was filed on January 23 , 2017 ,
and the motion was marked fully submitted on March 16 , 2017 .

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II.

The Facts

The facts as set forth be l ow are drawn from the
Plaintiff ' s FAC . They are taken as true f or purposes of the
motion to dismiss .

Pl aintiff , a professional model , attended a publ i c
haircut and styling demonstration at the Jacob Javits Convention
Center (the " Javits Center " ) on March 7 , 2016 . FAC

~~

15 - 17 .

Cartier was cutting her hair , and h e was doing so on behalf of
himself individually as well as in the course and scope of his
employment with Cartier Enterpr i ses , Cartier Salon , and
Be rsheart . Id .

~~

18 - 26 . During the demonstration , Cartier cut

Plaintiff ' s neck with scissors . Id .

~

28 . As a result , Kalinkina

sustained physical injury , pain , and scarring . Id .

III.

~

28 , 31 .

The Applicable Standards

The Rule 1 2 (b) (6 ) standard requi res that a complaint
p l ead sufficient facts to state a claim upon which relief can be
granted . Ashcroft v . Iqbal , 556 U. S . 662 , 677 - 78
Atl . Corp . v . Twombly , 550 U. S . 544 , 570

(2009) ; Bell

(2007) . On a motion to

dismiss under Fed . R . Civ. P 1 2(b) (6) , a ll factua l allegat i ons

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in the complaint are accepted as tr u e , and all reasonable
inferences are drawn in the plaintiff ' s favor . Littlejohn v .
City of N . Y ., 795 F . 3d 297 , 306 (2d Cir . 2015) ; Mills v . Polar
Molecular Corp ., 12 F . 3d 1170 , 1174

(2d Cir . 1993) . However , " a

plaintiff ' s obligation to provide the grounds of his entitlement
to relief requires more than labels and conclusions ." Twombly ,
550 U. S . at 555

(quotat i on marks omi tted) . A comp l aint must

contain " sufficient factual matter , accepted as true , to ' state
a claim to relief that i s plausib l e on its face. '" Iqbal , 556
U. S . at 663 (quoting Twombly , 550 U. S . at 570) .

A claim is facially plausible when " the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant i s liable for the
misconduct alleged ." Id .

(quoting Twombly , 550 U. S . at 556) . In

other words , the factual allegations must " possess enough heft
to show that the pleader is entitled to relief ." Twombly , 550
U. S . at 557

(interna l quotation marks omitted) .

Additionally , while "a plaintiff may plead facts
alleged upon information and belief ' where the belief is based
on factual information that makes the inference of culpability
plausible ,' such allegations must be ' accompanied by a statement

3

of the facts upon which the be li ef is founded .'" Munoz-Nagel v .
Guess , Inc ., No. 12 - 1312 , 2013 W 1 809772 , at *3 (S . D. N. Y. Apr .
L
30 , 2013)

(quoting Arista Records , LLC v . Doe 3 , 604 F . 3d 110 ,

1 2 0 (2d Cir . 2010)) and Prince v. Madison Square Garden , 427 F .
Supp . 2d 372 , 384

(S . D. N. Y. 2006) ; see also Williams v .

Calderoni , No . 11 - 3020 , 2012 WL 691832 , *7

(S . D. N. Y. Mar . 1,

2012) . The pleadings , however , "mu st contain something more than
. a sta tement of facts that merely creates a suspici on [of]
a legally cognizable right of action ." Twombly , 550 U. S . at 555
(quoting 5 CHARLES ALAN W
RIGHT

&

ART H R . MILLER , FEDERAL PRACTICE AND
UR

PROCEDURE § 1216 (3d ed . 2004)) .

IV.

The Motion to Dismiss Defendants Cartier Enterprises and
Cartier Salon is Granted

Cartier , Cartie r Enterprises , Cartier Salon , and
Bersheart have moved to dismiss the FAC as against defendants
Cartier Enterprises and Cartier Salon , arguing that these
entities had no involvement in the action . They state that the
facts at issue invo lve Cartier , who was performing haircutting
exhibitions at the International Beauty Show at the time of the
accident " within the permission of/and o r upon the authority of "
defendant Bersheart , and that Ca rti er Ente r prises - a holding
company for intellectua l property rights - and Cartier Salon - a

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hair salon in New Jersey - had no presence at the International
Beauty Show . There being no opposition by the Plaintiff to
dismissal of these two defendants , the FAC is dismissed as to
Cartier Enterprises and Cartier Salon .

V.

The Motion to Dismiss the Claim for Negligence is Denied

The Defendants argue that the Plaintiff released her
right to make any claim for injuries sustained as a result of
the alleged incident . This is the only argument they put forth
as to why the Plaintiff ' s negligence claim in the FAC should be
dismissed .

Hair Model Express Inc .

( " Hair Model Express " )

provided models to Bersheart for the haircutting exhibition
taking place at the International Beauty Show . See Dee l. of
Richard Schoonover at

~

4. Kalinkina was one such model . Prior

to the March 7 , 2016 event , Hair Model Express provided
Bersheart a release signed by Kalinkina that applied on the date
of the spe cific haircutting event (the "Release " ) . The Release
provides as follows :

I am providing modeling services for International
Designs Corp . and/or Bersheart LLC , their parents and
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subsidiaries , affiliates , and partners , in one or more
modeling sessions.
I authorize and license Internationa l Designs Corp .
and/or Bersheart LLC , their parents and subsidiaries ,
affiliates , partners , licensees , representatives , and
all persons or corporations acting with their
permission or upon their authority (collectively
" International Designs Corp. " ) , to use my name , voice ,
photograph , likeness , video , appearance and
performance (the "Ma terial " ) arising from any past or
future modeling sessions in connection with the
manufacturing , advertising , promotion , distribution
and sale of International Designs Corp . products and
services , and in connect ion with any other related
activities . International Designs Corp . may ed it and
modify the Material , and may incorporate and use all
or any part of the Material in video , audio , online
and print ads , still photographs , catalogs , packaging
and package inserts , and all other media (the
" Advertising " ) , and may reproduce , exhibit , broadcast ,
transmit and distribute Advertising containi ng the
Material by any and all means , media and cha nnels of
distribution .

* * *
I hereby release International Desi gn Corp . and/or
Bersheart LLC , their parents and subsidiaries ,
affiliates , partners , licensees , representatives , and
all persons acting with their permission or upon their
authority , from all liability in connection with the
Material , including without limitation any accident or
unforeseen incident resulting from or occurring during
any modeling session (including but not limited to ,
accidents during model hair cutt in g , preparation , and
during demonstrations) .

Declaration of Wendy K. Cardali , Ex . Fat p . 2 .

Kalinkina does not dispute that she signed the
Release , that the Release was active on the date of the
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accident , or that both Cartier and Bersheart are covered by the
Release. Rather , she contends that the terms of the Release do
not specifical l y bar a suit for personal injuries negligently
caused by t he Defendants. Defendants have argued that the terms
o f the Release exculpated them from any liability here , and that
the Re l ease need not use the words " negligence ," " persona l
injury , " or "bodily injury " in order to preclude this action .

Exculpatory agreements are subject to close judicial
scrutiny and a general rule of strict construction . Because the
law " frowns upon contracts intended to exculpate a party from
the consequences of his own negligence ," if the " intention of
the parties is [not] expressed in unmistakable language , an
exculpatory clause will not be deemed to insulate a party from
liability for his own negligent acts ." Gross v . Sweet , 400
N.E . 2d 306 , 309 (N.Y. 1979) . This rule of strict construction is
not applicable " to exoneration clauses in indemnification
agreements , which are usually ' negotiated at arm ' s length
between .

. sophisticated business . entities ' and which can be

viewed as merely allocating the risk of liability to third parties between themselves ." Hoheusle v . KLM Royal Dutch
Airlines , No . CV 93 - 0054 , 1995 WL 228644 , at *1

5 , 1995)

(E . D. N. Y. Apr.

(quoting Gross , 400 N. E.2d at 368) . Here , " we are not

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dealing with an indemnification agreement , but rather with an
exculpatory agreement which has the potential of depriving an
injured plaintiff of a remedy ." Geise v . Niagara Cnty ., 1 17
Misc . 2d 470 , 472

(N . Y. Sup . Ct . 1983) . As such , the rule of

strict construction applies .

The Defendants are correct t h at " the word ' negl i gence '
does not have to be specifically used fo r the courts to give
effect to an excu l patory agreement ." Sivaslian v . Rawlins , 88
A. D. 2d 703 , 704

(N . Y. 1982) . However , " words conveying a similar

import must appear ." Id .; see also Gross , 400 N. E . 2d at 309 -1 0
(citing with approval Theroux v . Kendenburg Racing Association ,
Inc ., 50 Misc . 2d 97

(N . Y. Sup . Ct . 1965) , aff ' d , 28 A. D. 2d 960 ,

in which " neglect " and " fau l t " were used) . No s u c h language
appears in the Release . Rather , like the agreement in Gross , the
release is in general terms , referring to release " from all
liability in connection with the Material , including without
limitation any accident or unforeseen incident ." The language in
the Release is insufficient to meet the Gross strict
construction rule because the term " accident " cannot substitute
for " negligence ." See Commercial Union Ins . Co . v . Blue Water
Yacht Club Ass ' n , 239 F . Supp . 2d 316 , 320-21

(E . D. N. Y. 2003)

(" The instant agreement contains no language tha t conveys a

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similar meaning to disclaim negligence without using that word ,
such as that [the defendant]

is not respo n sible for damages

caused by its own fa u lt or when it fails to use reasonable
care . " ) .

Defendants argue that the breadt h of the Release ' s
language is exactly why it app li es to thi s act i o n . See Re pl y Br .
at 3 . However , " agreements to release pa rt ies from ' any and all
responsibility or liabi l ity of any nature whatsoever ' will not
bar claims based on ordinary negligence ." Delaney v . City of
Mount Vernon , 28 A . D. 3d 41 6 , 417

(N . Y. 2006)

(internal ci t ations

omitted) ; see also Roane v . Greenwich S wim Comm . , 330 F . Supp .
2d 306 , 322

(S . D. N. Y. 2004)

(" [T ] he pertinent language of the

form - that the participant would ' waive and release any and all
rights and claims for damages I may have against any and all
race sponsors
said event ' -

. for any and all i n jur ies s u ffered by me in
is str i kingly fami l iar to other waiver forms that

have not been found exculpatory in prio r cases . " ) ; Geise v .
Niagara Cnty ., 117 Misc . 2d 470 , 472

(N . Y. Sup . Ct . 1983)

(finding that a similar , broadly - worded re l ease did not meet the
strict construction standard of Gross) . Furthermore , there is no
indication here that Plaintiff was " aware of or intended to
accept any enhanced exposure to injury arising from negligence

9

of the

[D]efendants ." Roane , 330 F . Supp . at 322 ; Applbaum ex

rel . Applbaum v . Golden Acres Farm & Ranch , 333 F . Supp . 2d 31 ,
35

(N . D. N. Y. 2004)

( " Assuming that the release [the plaintiff]

signed alerted him of the inherent dangers of horseback riding
' and that he entered into the sport with apprehension of the
risks , it does not follow that he was aware of , much less
intended to accept , any enhanced exposure to inj u ry occasioned
by the carelessness of the very persons on which he depended for
his safety ."' )

(italics in original)

(quoting Gross , 400 N. E . 2d

at 311) .

Having fo und that the necessary " plain []
precise[] " language regarding the Defendants '

and

exemption of

itself from liability for its own negligence is lacking ,

see

Gross , 400 N. E . 2d at 309 , and because any ambiguities must be
resolved against the party who drafted the agreement ,

see Geise ,

117 Misc . 2d at 473 , the Court concludes that the Release does
not preclude this action for ordinary negligence . The motion to
dismiss Plaintiff ' s negligence claim in the FAC is denied .

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VI.

The Motion to Dismiss the Claim for Gross Negligence is
Denied

Plaintiff ' s FAC differs from the original complaint
primarily in the addition of a claim of gross negligence . The
Release is not applicable to this claim ; while an exculpatory
clause " may shie l d [a] defendant from liability for ordinary
negligence , it will not protect the defendant from liability for
gross negligence ." Rice v . Harley Davidson Inc ., No .
1 : 04CV0481NAMDRH , 2005 WL 1843250 , at *3 (N . D. N. Y. Aug . 1 ,
2005) ; see also Kalisch-Jarcho v . City of NY , 58 N. Y. 2d 377
( 198 3)

("[A] n exculpatory agreement .

will not apply to

exemption of will f ul or grossly negligent acts ." ) .

The Defendants argue that the Release does apply to
Plaintiff ' s gross negligence claim , citing to multiple cases
where New York courts have enforced releases of liability where
the parties ' conduct did not sufficiently demonstrate gross
negligence . See Reply Br . at 8 . However , the cases to which the
Defendants cite take place at the summary judgment stage , where
sufficient evidence had been adduced to a ll ow the courts to
conclude that the defendants ' actions did not rise to the level
of gross negligence . See , e . g ., Colnaghi , U. S . A ., Ltd . v .
Jewelers Prot . Servs ., Ltd ., 611 N. E . 2d 282 , 284

11

(N . Y. 1993) ;

Lubell v . Samson Moving & Storage , Inc ., 307 A . D. 2d 2 1 5 , 215 - 16
(N . Y. App . Div . 1st Dep ' t 2003) ; Ninacci Diamond & Jewelry Co .
v . Miller Freeman , Inc. , 28 1 A . D. 2d 342 , 342
Dep ' t

(N . Y. App . Div . 1st

2001) . In other words , " [w ] h i le gros s negligence may b e

found as a matter of l aw in some limited in stances , th i s i s no t
s u ch a case ." Trump Int ' l Hotel & Tower v . Carrier Corp ., 524 F.
Supp . 2d 302 , 315 (S . D. N. Y. 2007) ; see also Rice , 2005 WL
1843250 , at *3

(denying a motion for summary judgment where

" l i ttle , if any , discovery has yet taken place " and the
p l aint if f had made sufficiently a l legations to state a cause of
action for gross negligence in the comp laint) .

Here , Pl ai n tiff has a l leged t h at Cart i er " ev i nced a
reckless i n difference " to her safety . FAC

~

35 . She alleges that

Cartier prevented her from leaving the stage to obtai n
treatment , t hat Defendants misinformed her as to the i njury , a n d
that Defendants attempted to conceal the injury from her . Id .

~~

38 - 41 . For the purposes of a motion to dis miss , Plaintiff has
alleged that the Defendants ' behavior at least "' s mac k s '

of

intentional wrongdoing " or " evince s a reck l ess d i sregard for th e
rights of others ." Alley Sports Bar , LLC v . SimplexGrinnell , LP,
58 F . Supp . 3d 280 , 289

(W . D. N. Y. 2014)

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(quoting Colnaghi , 61 1

N.E . 2d at 284) . The motion to dismiss Plaintiff ' s gross
negligence cause of action is therefore denied .

VII.

Conclusion

Based upon the conclusions set forth above , the motion
to dismiss defendants Cartier Enterprises and Cartier Salon is
granted , and the motion to dismiss the Pl aintiff ' s negligence
and gross negligence claims is denied .

It is so ordered .

New York, NY
June ').,Oi 2017

f
U.S.D.J.

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