Supreme Court, Kings County, October 7, 2025

OPINION OF THE COURT

Francois A. Rivera, J.

Notice of motion filed on September 30, 2024, under motion sequence number 8, by defendants Brooklyn Events Center, LLC doing business as Barclays Center and incorrectly sued herein as Brooklyn Sports & Entertainment, Brooklyn Arena LLC, AEG Management Brooklyn LLC, and Onexim Sports and Entertainment Holdings USA, Inc. (hereinafter Barclay or Barclay defendants) for an order pursuant to CPLR 3212 granting summary judgment in their favor on the issue of liability and dismissing the complaint and all cross-claims asserted against them. The motion is opposed.

Notice of cross-motion filed on March 19, 2025, under motion sequence number 9, by plaintiffs Sabrina Bencivenga and Michael Mulligan for an order pursuant to the common-law doctrine of spoliation of evidence and CPLR article 31, granting sanctions against moving defendants Brooklyn Events Center, LLC doing business as Barclays Center and incorrectly sued herein as Brooklyn Sports & Entertainment, Brooklyn Arena LLC, AEG Management Brooklyn LLC and Onexim Sports and Entertainment Holdings USA, Inc. The motion is opposed.

Notice of cross-motion filed on March 19, 2025, under motion sequence number 10, by plaintiffs Sabrina Bencivenga and Michael Mulligan for an order pursuant to CPLR 305 (c), 2001, and [*2]3025 (b) amending and correcting the name of a defendant in the caption from Live Nation Entertainment, Inc. to Live Nation Worldwide, Inc. The motion is opposed.

Notice of motion filed on May 8, 2025, under motion sequence number 11, by defendants/third-party defendants Live Nation Worldwide, Inc. and Live Nation Concerts, Inc. (collectively Live Nation) for an order pursuant to CPLR 3212 granting summary judgment in their favor on the issue of liability and {**88 Misc3d 990}dismissing the complaint of the plaintiffs, the cross-claims of codefendants, and the claims of third-party plaintiffs as against them, and entering judgment in their favor. The motion is opposed.

Procedural History

On October 20, 2017, the plaintiff, Chanel Fresella, an infant under 18 years of age, by her father and natural guardian, Bernard Couch, commenced a lawsuit against defendants Barclays Center, AEG Management Brooklyn, LLC, Brooklyn Events Center, LLC, and Brooklyn Arena Holding Company, LLC by the filing of a summons and complaint in the [*3]County of Kings under index number 520316/2017. The foregoing defendants appeared by verified answer.

On February 1, 2019, defendants AEG Management Brooklyn, LLC and Brooklyn Events Center, LLC doing business as Barclays Center filed a third-party summons and complaint against Live Nation Worldwide, Inc. and Live Nation Concerts, Inc.

On February 22, 2019, the plaintiff, Chanel Fresella, an infant under 18 years of age, by her father and natural guardian, Bernard Couch, filed a supplemental summons and amended complaint against and adding Live Nation Worldwide, Inc. and Live Nation Concerts, Inc. to the action. On March 4, 2019, third-party defendants, Live Nation Worldwide, Inc. and Live Nation Concerts, Inc., filed an answer to the amended complaint. On March 11, 2019, defendants AEG Management Brooklyn, LLC and Brooklyn Events Center, LLC doing business as Barclays Center filed an answer to the amended complaint.

Thereafter, and pursuant to order of the Honorable Joseph C. Pastoressa, Justice of the Supreme Court, County of Suffolk, dated December 21, 2018, the foregoing action was consolidated with four other actions into the instant action and caption under the instant index number.

The consolidated actions are all cases based upon the claims of other individuals who were hurt due to the same incident. A note of issue was filed on August 1, 2024.

Background

On October 20, 2017, Bernard Couch, as the parent and natural guardian of Chanel Fresella, commenced the instant action for damages for personal injury sustained by Chanel Fresella by {**88 Misc3d 991}filing a summons and verified complaint with the Kings County Clerk's office (KCCO). On February 22, 2019, the plaintiff filed an amended verified complaint with the KCCO. Chanel Fresella is no longer an infant.

The amended verified complaint alleges that Chanel Fresella was injured on May 19, 2017, at the Barclays Center, located at 620 Atlantic Avenue, Brooklyn, New York, due to the defendants' negligence, carelessness, and recklessness. Further discovery revealed that the injury occurred following the end of a concert when the crowd surged in response to loud noises, which some members of the crowd reported as gunshots (hereinafter the incident).

Currently, the action concerns the consolidated claims of seven individuals who were also allegedly injured by a surging crowd at Barclays Center on May 19, 2017. The common allegation is that the crowd at Barclays Center spontaneously reacted in panic to a loud noise that was thought to be a gunshot. It was determined after the incident that there were no gunshots fired. The crowd quickly moved toward the exits, and all the plaintiffs herein claim that they were injured by patrons attempting to exit the venue.

Law and Application

Barclay Defendants' Motion under Motion Sequence Number 8

Barclay has moved under motion sequence number 8 for an order pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross-claims asserted against defendants/third-party plaintiffs Brooklyn Events Center, LLC doing business as Barclays Center and incorrectly sued herein as Brooklyn Sports & Entertainment, Brooklyn Arena LLC, AEG Management Brooklyn LLC, and [*4]Onexim Sports and Entertainment Holdings USA, Inc.^FN*

It is well established that summary judgment may be granted only when no triable issue of fact exists (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating "the {**88 Misc3d 992}absence of any material issues of fact" (Alvarez, 68 NY2d at 324; Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]).

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

"Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, 'that there is no defense to the cause of action or that the cause of action or defense has no merit.' Further, all the evidence must be viewed in the light most favorable to the opponent of the motion" (People v Grasso, 50 AD3d 535, 544 [1st Dept 2008], citing Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]).

Defendants Brooklyn Events Center, LLC (BEC) and AEG Management Brooklyn, LLC admitted in their answer that BEC is the de facto owner of the premises known as Barclays Center pursuant to a 99-year lease, and that AEG Management Brooklyn, LLC was responsible for management and operation of aspects of the Barclays Center pursuant to its management agreement with BEC.

Barclay's first contention, as set forth in their memorandum of law in support of the motion, is that the claims asserted against defendants Brooklyn Arena LLC, Onexim Sports and Entertainment Holdings USA, Inc., and Brooklyn Sports & Entertainment must be dismissed since these entities did not own, operate, maintain, manage, or control the Barclays Center and had no duty to do so. This contention was supported by an affidavit of Jeffrey Gewirtz (hereinafter Gewirtz), annexed as exhibit PP, to the motion.

Gewirtz averred that he is the executive Vice President, Business Affairs and Chief Legal Officer for Brooklyn Events Center, LLC and that his allegations of facts were based on information and belief. He then alleged certain facts and opined, among other things, that Onexim did not own, operate, maintain, manage, or control the Barclays Center and had no duty to do so. He further opined that Brooklyn Sports & {**88 Misc3d 993}Entertainment was not a legal entity, but rather a trade name formerly utilized by Brooklyn Events Center, LLC in the branding of Barclays Center. And, as a fictitious entity, it does not own, operate, maintain, manage, or control Barclays Center, and has no role in any security-related practices at Barclays Center at any time.

However, Gewirtz's affidavit did not state the source of his information or of his belief. He did not aver personal knowledge of the facts he was alleging. If the facts were based on Gewirtz's review of business records, he did not state which business records he relied upon. Nor does he refer to any of the exhibits which were annexed to Barclay's motion. He neither referred to any annexed documents as business records or averred knowledge of the business practices or procedures used in making any such records. "[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted" (Citibank, N.A. v Potente, 210 AD3d 861, 862 [2d Dept 2022], quoting Bank of N.Y. Mellon v Gordon, 171 AD3d [*5]197, 205 [2d Dept 2019]). "Accordingly, '[e]vidence of the contents of business records is admissible only where the records themselves are introduced' " (Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 205-206 [2d Dept 2019], quoting 35 Carmody-Wait 2d § 194:94 [2019]). "Without their introduction, a witness's testimony as to the contents of the records is inadmissible hearsay" (Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 206 [2d Dept 2019]). In sum, his allegations of fact and opinion were unsupported and conclusory.

Barclay further contends that the remaining claims asserted against Brooklyn Events Center, LLC doing business as Barclays Center (hereinafter BEC or Barclays Center) and incorrectly sued herein as Brooklyn Sports & Entertainment, Brooklyn Arena LLC (hereinafter Brooklyn Arena), and AEG Management Brooklyn LLC (hereinafter AEG) should be dismissed because they provided more than adequate security and the crowd surge which caused the plaintiffs' injuries was unforeseeable. They contend that the security precautions they employed and provided were more than adequate to guard against foreseeable acts of a third party. However, their showing does not demonstrate that the security provided was adequate with respect to each individual circumstance experienced by each injured plaintiff; instead, their presentation was more general.

{**88 Misc3d 994}Barclay further contends that the panic and crowd surge was unforeseeable citing the matter of Florman v City of New York (293 AD2d 120 [1st Dept 2002]) in support.

Among other things, Barclay relies on the deposition testimony of NYPD Sergeant Angelo Pirozzi who was assigned to Barclays Center on the day of the incident. Sergeant Pirozzi testified that after the concert ended, he was alerted of the incident when a large crowd started running in his direction saying that there was a shooting. He immediately ran towards the arena to find the shooter and was advised that there was no shooting and that the crowd responded to a loud noise due to an equipment issue related to the stage. Sergeant Pirozzi also testified that the crowd panic was not foreseeable and that the security staff could not have done more to calm the crowd after the incident. However, Sergeant Pirozzi is a fact witness and was not offered as an expert on the issue of foreseeability. His opinion as to foreseeability is therefore not considered by the court. The court cannot and does not find that the crowd surge caused by the loud noise was unforeseeable as a matter of law.

"What is foreseeable or normal may be the subject of varying inferences and is generally for the finder of fact to resolve" (Beier v Giglio, 230 AD3d 733, 734 [2d Dept 2024], citing Raldiris v Enlarged City Sch. Dist. of Middletown, 179 AD3d 1111, 1114 [2d Dept 2020]). Here, the issue of foreseeability is left for the factfinder to resolve.

Barclay did not make a prima facie showing that Brooklyn Arena LLC, Onexim Sports and Entertainment Holdings USA, Inc., and Brooklyn Sports & Entertainment did not own, operate, maintain, manage, or control Barclays Center. In the light most favorable to the opponent, the evidence presented shows the loud noise, which sounded like gunshots, was reasonably attributable to the breaking down of the stage set while patrons were still in the facility in the process of exiting. The noise was thus reasonably attributable to the conduct of the Barclay defendants' agents and employees. Barclay's motion is therefore denied without regard to the sufficiency of the opposition papers (see Dowling v Valeus, 119 AD3d 834, 835 [2d Dept 2014], citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Moreover, in opposition, John A. Meringolo (hereinafter Meringolo), the attorney for Sabrina Bencivenga and Michael Mulligan, averred that the adequacy of the movants' security was {**88 Misc3d 995}irrelevant because it did not account for the movants' inaction and negligent creation of the loud noise during egress which caused the crowd surge.

[*6]

Meringolo referred to parts of the deposition testimony of some of the plaintiffs and some of the individuals who were deposed on behalf of the movants. Ms. Fresella had testified that at the end of the show the lights came on and she got up out of her seat and proceeded to move toward the stairs. While standing at the top of the steps about to take a first step down, Ms. Fresella heard a loud noise which came from behind her and inside the building. Ms. Fresella indicated that after hearing the loud noise she heard people screaming. A rush of people ran into her from behind. She was knocked forward and into the people in front of her. She fell to the ground and was trampled. She described the event as a stampede.

Michael Sobieraj (hereinafter Sobieraj), a representative of defendants Brooklyn Events Center, LLC, Brooklyn Arena LLC, AEG Management Brooklyn LLC, and Onexim was deposed. Sobieraj averred, among other things, that on the night of the incident, the performance was on a 180 degree stage, with approximately 12,000 people in attendance. In describing some tasks of the stagehands in breaking down the stage, Sobieraj indicated that in breaking down the barricades, they do collapse and make a large sound. Sobieraj described it as a quite loud, metal-on-metal sound, which reverberates into an echo and is heard out in the hallways. The witness indicated that pursuant to contract, load-out commences immediately following the conclusion of the event.

In sum, the opposing party produced sufficient and admissible evidentiary proof to establish the existence of material issues of fact as to the adequacy of the security and as to the foreseeability of the crowd surge (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Bencivenga and Mulligan's Cross-Motion for Sanctions under Motion Sequence Number 9

Plaintiffs Sabrina Bencivenga and Michael Mulligan have cross-moved for an order pursuant to the common-law doctrine of spoliation of evidence and CPLR article 31, granting sanctions against moving defendants Brooklyn Events Center, LLC doing business as Barclays Center and incorrectly sued herein as Brooklyn Sports & Entertainment, Brooklyn Arena LLC, AEG Management Brooklyn LLC and Onexim Sports and Entertainment Holdings USA, Inc. for spoliation of video evidence. Plaintiffs Bencivenga and Mulligan seek as a sanction the denial of the Barclay defendants' motion under motion sequence number 8 and an adverse inference at the time of trial.

Here, the court has denied the Barclay defendants' motion for summary judgment under motion sequence number 8 for failure to make a prima facie showing of entitlement and not by applying a sanction for spoliation of evidence. Consequently, the issue remaining is the cross-movants' request for an adverse inference at the time of trial.

The cross-motion for sanctions was joined by plaintiffs Roberto Ubinas-Lugo, Chanel Fresella, Bernard Couch, Catrina Washington, and Shauntay Harris. It was opposed by the Barclay defendants, Live Nation Worldwide, Inc., and Live Nation Concerts, Inc.

By letter dated October 5, 2017, under New York State Courts Electronic Filing (NYSCEF) Doc No. 334, addressed to Rivkin Radler LLP, counsel for Brooklyn Events Center, LLC doing business as Barclays Center and incorrectly sued herein as Brooklyn Sports & Entertainment, Brooklyn Arena LLC, AEG Management Brooklyn LLC and Onexim Sports and Entertainment Holdings USA, Inc., Siben & Siben, counsel for Bencivenga and Mulligan, made a non-spoliation demand to preserve all evidence and instrumentalities related to the plaintiffs' claims, including, but not limited to, audio or video recordings.

The Barclay defendants have opposed the motion contending in their memorandum of law that the preservation letter of October 5, 2017, was dated nearly five months after the alleged incident of May 19, 2017. The Barclay defendants further argued that 24 surveillance [*7]videos were exchanged in discovery and plaintiffs were advised that any other video film from Barclays Center had automatically erased 60 days after the date of loss.

"Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126" (Van DeVeerdonk v North Westchester Restorative Therapy & Nursing Ctr., 223 AD3d 702, 703 [2d Dept 2024], citing Holland v W.M. Realty Mgt., Inc., 64 AD3d 627, 629 [2d Dept 2009]). "The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence" (Van DeVeerdonk v North Westchester Restorative Therapy & Nursing Ctr., 223 AD3d 702, 703 [2d Dept 2024]; {**88 Misc3d 997}see Ortega v City of New York, 9 NY3d 69, 76 [2007]; Lentz v Nic's Gym, Inc., 90 AD3d 618, 618 [2d Dept 2011]).

"A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a 'culpable state of mind,' and 'that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense' " (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547 [2015], citing VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 45 [1st Dept 2012]; see Franco v Half Moon Riv. Club, LLC, 214 AD3d 956, 958 [2d Dept 2023]).

"A culpable state of mind for purposes of a spoliation sanction includes ordinary negligence" (Washington v Church & Nostrand Apparel Corp., 238 AD3d 1096, 1098 [2d Dept 2025], quoting Dagro Assoc. II, LLC v Chevron U.S.A., Inc., 206 AD3d 793, 795 [2d Dept 2022], quoting Hirschberg v Winthrop-University Hosp., 175 AD3d 556, 557 [2d Dept 2019]). "However, ' "[i]n the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices" ' " (Washington v Church & Nostrand Apparel Corp., 238 AD3d 1096, 1098 [2d Dept 2025], quoting Tanner v Bethpage Union Free Sch. Dist., 161 AD3d 1210, 1211 [2d Dept 2018]).

Here, the issue is whether the Barclay defendants were on notice of a credible probability that they would become involved in litigation such that their failure to take active steps to halt the process of automatically recording over 60-day-old surveillance video and to preserve it for litigation constituted spoliation of evidence. The fact that the spoliation letter was issued five months after the injury causing event is not dispositive.

The court finds that the Barclay defendants were aware that people were injured on May 19, 2017, and that there was a high probability that litigation might ensue. With that awareness they admittedly preserved at least 24 videos from the date of the incident before they received the non-spoliation letter. The court further finds that the Barclay defendants had control over the video evidence and possessed an obligation to preserve it before it was overwritten. Allowing the video to be overwritten was negligent and the lost evidence was relevant to the plaintiffs' claim.

The court further finds that whether a sanction is appropriate, and if so, what that sanction should be, is best left to the trial judge. Accordingly, this issue is respectfully referred to the trial judge to be addressed in a motion in limine.

Bencivenga and Mulligan's Cross-Motion to Amend the Complaint under Motion Sequence Number 10

[*8]

Sabrina Bencivenga and Michael Mulligan have cross-moved to amend the summons and complaint by correcting the name of a defendant in the caption from Live Nation Entertainment, Inc. to Live Nation Worldwide, Inc. The motion was opposed. On May 1, 2025, the court issued an interim order which directed the cross-movants to file a proposed amended summons and complaint redlined to clearly set forth the proposed changes sought by the cross-motion. On July 7, 2024, the cross-movants filed a proposed redlined amended complaint under NYSCEF Doc No. 528.

"Applications for leave to amend pleadings under CPLR 3025 (b) should be freely granted unless the proposed amendment would unfairly prejudice or surprise the opposing party, or is palpably insufficient or patently devoid of merit" (TD Bank, N.A. v Keenan, 221 AD3d 1040, 1041 [2d Dept 2023]; see CPLR 3025 [b]). "The party opposing the application has the burden of establishing prejudice, which requires a showing that the party has been hindered in the preparation of its case or has been prevented from taking some measure in support of its position" (Great Neck Lib. v Kaeyer, Garment & Davidson Architects, P.C., 236 AD3d 873, 875 [2d Dept 2025]).

Live Nation Worldwide, Inc. and Live Nation Concerts, Inc. have opposed the cross-motion claiming that the proposed amendment was patently lacking in merit and palpably improper. The proposed amended pleading solely corrected the name of a defendant from Live Nation Entertainment, Inc. to Live Nation Worldwide, Inc. in the caption and throughout the complaint. It did not allege new or different facts or theories of liabilities. It merely corrected a misnomer. The opposition of Live Nation Worldwide, Inc. and Live Nation Concerts did not dispute that the change did in fact correct a misnomer of the defendant; rather, their opposition was premised on the contention that they should not be defendants at all.

The cross-motion to amend the summons and complaint is granted and all parties who have appeared in the action are deemed served with the amended pleading.

Live Nation's Motion for Summary Judgment and Dismissal under Motion Sequence Number 11

On May 8, 2025, defendants/third-party defendants Live Nation Worldwide, Inc. and Live Nation Concerts, Inc. (hereinafter Live Nation) filed a motion for an order pursuant to CPLR 3212 granting summary judgment in their favor on the issue of liability and dismissing the complaint of the plaintiffs, the cross-claims of codefendants, and the claims of third-party plaintiffs as against them, and entering judgment in their favor. The motion is opposed.

Pursuant to the Uniform Civil Term Rules of the Supreme Court, Kings County, a motion for summary judgment must be made no later than 60 days after the filing of the note of issue, unless leave of the court is obtained on good cause shown (see Goldin v New York & Presbyt. Hosp., 112 AD3d 578, 579 [2d Dept 2013], citing Kings County Sup Ct Uniform Civ Term Rules, part C, rule 6). In the instant matter, the note of issue was filed on August 1, 2024, and Live Nation's motion was filed on May 8, 2025, over seven months late.

A movant seeking leave to make a late summary judgment motion must demonstrate good cause for the delay (see CPLR 3212 [a]; see Ade v City of New York, 164 AD3d 1198, 1200-1201 [2d Dept 2018], citing Courtview Owners Corp. v Courtview Holding B.V., 113 AD3d 722, 723 [2d Dept 2014]). "In the absence of a showing of good cause for the delay in filing a motion for summary judgment, the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment" (Bargil Assoc., LLC v Crites, 173 [*9]AD3d 958, 958 [2d Dept 2019], quoting Bivona v Bob's Discount Furniture of NY, LLC, 90 AD3d 796, 796 [2d Dept 2011]).

Here, the attorney handling the case, a partner with the law firm of Hannum Feretic Prendergast & Merlino LLC, explained why the motion was delayed. The mother of the handling attorney was diagnosed with a terminal illness in 2024 which progressively worsened causing the handling attorney to care for her mother daily from September through her passing in early December 2024. Due to issues related to the mother's medical condition, the handling attorney was unable to attend to the matter and the time to move for summary judgment lapsed.

The handling attorney did not seek any affirmative relief, such as leave to file a late motion or an extension of time within which to file the motion. Nor did the handling attorney explain why the matter could not have been handled by other counsel in the firm. As pointed out in opposition, the handling attorney's firm has law offices in New York and New Jersey with 16 attorneys in its New York City office alone. Under these circumstances, the excuse proffered does not constitute good cause (see Brill v City of New York, 2 NY3d 648, 652 [2004]).

"[A]n untimely motion or cross motion for summary judgment may be considered by the court where . . . a timely motion for summary judgment was made on nearly identical grounds" (Munoz v Salcedo, 170 AD3d 735, 736 [2d Dept 2019], quoting Whitehead v City of New York, 79 AD3d 858, 860 [2d Dept 2010]).

Here, Live Nation seeks an order granting summary judgment in its favor on the issue of liability on the basis that it is free of fault. The court finds that Live Nation's motion is a mirror image of the Barclay defendants' motion under motion sequence number 8 and may therefore be addressed although untimely.

Live Nation seeks dismissal of all claims against it based on the following contentions. First, it had no duty or responsibility regarding security. Second, it did not cause, create, or contribute to the loud noise which caused the crowd surge. Third, it neither owned nor controlled the Barclays Center and only had use of a portion of the Barclays Center pursuant to a limited license agreement between itself and BEC. Live Nation's role was that of an entertainment promoter who brought together the performing artist with the individual parties in control of the venue in which the artist would perform.

The motion is supported by, among other things, an affirmation of its counsel, the deposition transcript of the plaintiffs, the deposition transcript of Barclay's witness, Michael Sobieraj (hereinafter Sobieraj), and the deposition testimony of its own witness, Bill Mockler (hereinafter Mockler).

The deposition testimony of Michael Sobieraj and Bill Mockler established the following facts. Live Nation had no duty or responsibility regarding security at the Barclays Center. Live Nation was not involved in the sound, lighting, or stagecraft for the subject concert, including the breaking down of the stage set and equipment, referred to as loadout. The removal of the barricades was performed by Barclays Center workers. Live Nation did not and could not broadcast outside of the bowl, including over the Barclays Center house speaker system. Barclays Center hired the stagehands who performed the loadout. Live Nation could not make announcements that could be heard outside the bowl. Live Nation responsibilities and obligations were governed by a licensing agreement between itself and BEC. No party disputed the authenticity of the license agreement.

The plaintiffs claimed, among other things, that they sustained injuries due to the negligence of Live Nation in their acts or omission at the Barclays Center. Because a finding of [*10]negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party (see Darby v Compagnie Natl. Air France, 96 NY2d 343, 347 [2001]; Pulka v Edelman, 40 NY2d 781, 782 [1976]). Here, the issue is whether any such duty ran from Live Nation to the plaintiffs, given that Live Nation's license agreement was with the owners or managers of the Barclays Center.

"Generally a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party" (Kapoian-Trapani v City of New York, 241 AD3d 895, 895 [2d Dept 2025], citing Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]; Forbes v Equity One Northeast Portfolio, Inc., 212 AD3d 780, 781 [2d Dept 2023]).

"However, a party that enters into a contract to render services may be said to have assumed a duty of care, and thus, be potentially liable in tort to third persons, where (1) the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm, (2) the plaintiff detrimentally relies on the continued performance of the contracting party's duties, or (3) the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Martinelli v Dublin Deck, Inc., 198 AD3d 635, 637 [2d Dept 2021]; see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]; Forbes v Equity One Northeast Portfolio, Inc., 212 AD3d 780, 781 [2d Dept 2023]).

"Where the pleadings do not allege facts which would establish the applicability of any of the Espinal exceptions, a defendant is not required to affirmatively demonstrate that the exceptions do not apply in order to establish its prima facie entitlement to judgment as a matter of law" (Forbes v Equity One Northeast Portfolio, Inc., 212 AD3d 780, 781-782 [2d Dept 2023]; Canciani v Stop & Shop Supermarket Co., LLC, 203 AD3d 1011, 1013 [2d Dept 2022]; Martinelli v Dublin Deck, Inc., 198 AD3d 635, 637 [2d Dept 2021]). "However, where any of the Espinal exceptions are pleaded in the complaint or the bill of particulars, a defendant contractor is required to demonstrate that those pleaded exceptions do not apply in order to establish its prima facie entitlement to judgment as a matter of law" (Nesbitt v Advanced Serv. Solutions, 224 AD3d 841, 843 [2d Dept 2024], citing Conrad v Global Indus. Servs., Inc., 180 AD3d 868, 869 [2d Dept 2020], Nachamie v County of Nassau, 147 AD3d 770, 774 [2d Dept 2017], and Perry-Renwick v Giovanni Macchia Landscaping & Gardening, Inc., 136 AD3d 772, 773 [2d Dept 2016]).

There is no dispute that not one of the plaintiffs was a party to the license agreement. Nor has any party claimed it was a third-party beneficiary of the license agreement. Live Nation has contended that no plaintiff claimed that Live Nation is liable to them under any one of the Espinal exceptions.

Assuming arguendo that an Espinal exception was pleaded by any plaintiff, Live Nation has made the following arguments. First, it did not launch a force or instrument of harm. Second, the plaintiffs did not detrimentally rely on Live Nation's continued performance of its duties. Third, Live Nation's duties did not entirely displace another party's duties. Therefore, since Live Nation did not have any duty regarding crowd control or building security, bore no responsibility for monitoring, controlling, or stopping the escalator, and lacked the authority or capability to broadcast over the Barclay defendants' house speaker system, no party can claim to have detrimentally relied upon the continuing performance of Live Nation's duties.

Live Nation's evidentiary submission establishes its second and third arguments. However, as set forth below, Live Nation did not make a prima facie showing that it did not launch an instrument of harm. Live Nation has argued that there is no clear evidence of the source of the loud noise which triggered the crowd surge and that multiple potential sources [*11]were identified. It further contends that, because of the uncertainty of the source, no party has or can submit admissible evidence that Live Nation caused, created, or contributed to the source of the sound.

Mockler's deposition testimony showed that, although part of his responsibility on behalf of Live Nation was to ensure that the stage was properly removed, along with the sound and lighting equipment, no one from Live Nation was present during the loadout at the time of the incident. Both Mr. Mockler and the only other Live Nation employee on site, Melissa Mack, had already left the premises. Additionally, prior to Mr. Mockler's departure on the date of the incident, he did not inform any Barclays Center personnel that he intended to leave early. Mockler, however, did not establish that no one from Live Nation was present when the loud noise occurred. In fact, there was some evidence that Live Nation may have had runners present at the time of the incident.

At this stage of the pretrial proceedings, it is not the plaintiff's burden to conclusively establish the cause of the loud noise that led to the crowd surge. "It is a defendant's burden, when it is the party moving for summary judgment, to demonstrate affirmatively the merits of a defense . . . , which cannot be sustained by pointing out gaps in the plaintiff's proof" (J&M Indus., Inc. v Red Apple 180 Myrtle Ave. Dev., LLC, 197 AD3d 1154, 1156 [2d Dept 2021], quoting Quantum Corporate Funding, Ltd. v Ellis, 126 AD3d 866, 871 [2d Dept 2015]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (J&M Indus., Inc. v Red Apple 180 Myrtle Ave. Dev., LLC, 197 AD3d 1154, 1156 [2d Dept 2021], citing Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986], and Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

In sum, Live Nation's evidentiary submission did not eliminate all material issues of fact as to whether it launched the instrument of harm. Accordingly, Live Nation's motion to dismiss the complaint and third-party complaint asserted against them is denied.

Live Nation's Motion for Dismissal of the Cross-Claims and Third-Party Claims under Motion Sequence Number 11

Live Nation also seeks an order pursuant to CPLR 3212 dismissing all cross-claims and third-party claims asserted against it. Live Nation focused solely on the cross-claims and third-party claims asserted by the Barclay defendants against it for contribution, indemnification based on breach of contract, breach of contract for failing to procure insurance, and contractual indemnification.

Live Nation seeks dismissal of the claims for common-law indemnity and contribution. This branch of their motion was premised on the assumption that it would have been found to be free of fault in connection with the branch of the motion seeking summary judgment dismissing the plaintiffs' claims asserted against it. However, in light of the court's contrary ruling, this branch of Live Nation's motion for summary judgment is necessarily premature.

Live Nation seeks dismissal of the claims for indemnification based on breach of contract, breach of contract for failing to procure insurance, and contractual indemnification. Live Nation has argued that under articles 13 and 14 of the terms and conditions of the licensing agreement, the contractual obligation to indemnify, hold harmless, or procure insurance for the benefit of the Barclay defendants' indemnitees applies only as to liability assumed by Live Nation and/or damages arising out of Live Nation's acts, omissions, or negligence. Accepting this as true for the sake of argument, here, Live Nation's argument rests on the anticipated ruling [*12]that it would be found free of fault. In light of the court's contrary ruling, dismissal of these cross-claims and third-party claims is likewise premature. Furthermore, Live Nation has presented no evidence demonstrating that it procured the insurance required under the licensing agreement. Accordingly, the branch of Live Nation's motion seeking dismissal of all cross-claims and third-party claims asserted against it is denied.

Conclusion

The motion by defendants Brooklyn Events Center, LLC doing business as Barclays Center and incorrectly sued herein as Brooklyn Sports & Entertainment, Brooklyn Arena LLC, AEG Management Brooklyn LLC and Onexim Sports and Entertainment Holdings USA, Inc., under motion sequence number 8, for an order pursuant to CPLR 3212 granting summary judgment in their favor on the issue of liability and dismissing the complaint and all cross-claims asserted against them is denied.

The cross-motion by plaintiffs Sabrina Bencivenga and Michael Mulligan, under motion sequence number 9, for an order pursuant to the common-law doctrine of spoliation of evidence and CPLR article 31, granting sanctions against moving defendants Brooklyn Events Center, LLC doing business as Barclays Center and incorrectly sued herein as Brooklyn Sports & Entertainment, Brooklyn Arena LLC, AEG Management Brooklyn LLC, and Onexim Sports and Entertainment Holdings USA, Inc. is decided as follows. The branch of the motion seeking an order denying the Barclay defendants' motion for summary judgment as a sanction for spoliation of evidence is moot. The branch of the motion seeking an adverse inference at trial as a sanction for spoliation of evidence is respectfully referred to the trial judge.

The cross-motion by plaintiffs Sabrina Bencivenga and Michael Mulligan, under motion sequence number 10, for an order pursuant to CPLR 305 (c), 2001, and 3025 (b) amending and correcting the name of a defendant in the caption from Live Nation Entertainment, Inc. to Live Nation Worldwide, Inc. is granted.

The motion by defendants/third-party defendants Live Nation Worldwide, Inc. and Live Nation Concerts, Inc., under motion sequence number 11, for an order pursuant to CPLR 3212 granting summary judgment in their favor on the issue of liability and dismissing the complaint of the plaintiffs, the cross-claims of codefendants, and the claims of third-party plaintiffs as against them, and entering judgment in their favor, is denied.