The following e-filed documents listed on NYSCEF (Motion No. 008) numbered 131-145, 149, 177-184, 186, 188 and (Motion No. 009) numbered 152-159, 161-176, 187, 189 were read on this motion.

Upon the foregoing documents, and after oral argument conducted on January 9, 2025, on Motion Sequence No. 008 and Motion Sequence No. 009, Motion Sequence No. 008, and Motion Sequence No. 009 are resolved and therefore, it is hereby,

ORDERED, that Defendant AVI Foodsystems' Motion Sequence No. 008 request for summary judgment pursuant to CPLR § 3212 is DENIED with prejudice; and it is further,

ORDERED, that Defendants Staten Island University Hospital and Northwell Health, Inc.'s Motion Sequence No. 009 request for summary judgment pursuant to CPLR § 3212 is DENIED with prejudice; and it is further,

ORDERED, that counsel shall appear for a conference on the next appearance date of February 25, 2025, at 9:30 AM, at the Courthouse located at 26 Central Avenue, Courtroom 330, Staten Island, NY; and it is further,

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

On or about January 10, 2023, Plaintiff commenced this negligence action to recover for personal injuries allegedly sustained by the Plaintiff from an incident occurring on or about December 24, 2022, in which a hot liquid, prepared by Defendant AVI Foodsystems, (hereinafter referred to as AVI) was spilled on Plaintiff at a facility managed by Defendant Staten Island University Hospital (herein after referred to as SIUH) and Northwell Health, Inc. (herein after referred to as Northwell). Issue was joined as to Defendants, SIUH and Northwell, through service of said Defendants' Verified Answer on February 24, 2023.

Plaintiff filed an Amended Complaint on January 31, 2024, adding in the Defendant AVI and AVI served a Verified Answer on March 13, 2024.

Defendant AVI filed Motion Sequence No. 008 by Notice of Motion on October 2, 2024, seeking (a) summary judgment on behalf of Defendant AVI pursuant to CPLR § 3212 and dismissal of Plaintiff's complaint and (b) such other and further relief as this Court deems just and proper. Plaintiff filed opposition to Motion Sequence No. 008 on December 5, 2024. Defendant AVI filed reply on December 19, 2024.

Defendants SIUH and Northwell filed Motion Sequence No. 009 by Notice of Motion on [*2]November 22, 2024, seeking (a) summary judgment on behalf of Defendants SIUH and Northwell pursuant to CPLR § 3212 and dismissal of Plaintiff's complaint and (b) such other and further relief as this Court deems just and proper. Plaintiff filed opposition to Motion Sequence No. 009 on December 5, 2024. Defendants SIUH and Northwell filed reply on January 8, 2025.

Oral argument was completed on Motion Sequence No. 008 and Motion Sequence No. 009 on January 9, 2025.

On December 23, 2022, at approximately 9:00 PM, Plaintiff presented to Emergency Department of SIUH South complaining of vomiting, back pain, dizziness, diarrhea and an inability to tolerate fluids or foods for the past two days. (NY St Cts Filing [NYSCEF] Doc No. 162 at pages 520; 525). Plaintiff testified that she was vomiting, had dehydration, and was diagnosed as having dangerously low sodium. (NY St Cts Filing [NYSCEF] Doc No. 133 at page 28). Plaintiff was admitted for treatment (NY St Cts Filing [NYSCEF] Doc No. 162 at page 534) and testified that "I stayed in the emergency room until couple of days and then they gave me a room." (NY St Cts Filing [NYSCEF] Doc No. 133 at page 32).

Veronica Ahrens, RN, herein after referred to as Nurse Ahrens, testified that the dietary food and nutrition team brings the food trays to patients. (NY St Cts Filing [NYSCEF] Doc No. 165 at page 23 lines 21-24).

Julia Villani, R. D., hereinafter referred to as Villani, is Defendant AVI's Patient Services Manager and was the opening manager at the hospital on the day of the incident. (NY St Cts Filing [NYSCEF] Doc No. 166 at page 10-11). Villani's responsibilities were "[t]o open the kitchen, ensure that everyone was in place for the day, manage callouts, and monitor breakfast service." (see id at page 12 lines 15-17).

Villani testified that the "Tray Line/POD Temperature Log-1" records temperatures of hot liquids served with a food service thermometer. (see id at page 28-9). Villani was questioned regarding this process.

Q. Okay. Well, so is it [checking the temperature of a liquid that will be served to patients] for one specific tray?

A. It is just for premeal service to ensure that it meets that temperature standard.

Q. So, this particular measurement, is it only for one premeal or only one meal?

A. Yes. We check the beverages once per day.

Q. Okay. So, does every single tray have a corresponding temperature log?

A. No.

Q. Okay. So, was this temperature log for a specific tray? Or is it just a specific —random section of a tray? I am not really following you.

A. Neither. It is just like before you start serving the food, you take the temperature of the items.

Q. Okay. This log was conducted before (see id at page 30 lines 7-25) you prepared any tray?

A. Correct. (see id at page 31 lines 1-2).

Q. You pour the water into the cup of hot water, and then you take the temperature?

A. Correct.

Q. There is there any type of guideline for what the temperature should be for her cup of (see id at page 31 lines 21-25) hot water?

A. I follow the guideline that is listed in the book here.

Q. Where is the guideline listed in the book? Oh, I see. Where it says 190 Fahrenheit?

A. Yes. It says greater than or equal to 190.

Q. Does that mean that the book has a guideline that the hot water should be higher than — 190 or higher?

A. Correct.

Q. Is there any guideline that indicates that the water should have a certain maximum threshold?

A. Not that I am aware of. (see id at page 32 lines 1-15).

Q. So, just to clarify, this two-page document that I am reading, the Pre-Service Checklist, this is general for all items, not for one specific tray; is that correct?

A. That is correct.

Q. Okay. Do you check the temperature again a second time? Or is this it?

A. We do the food each meal.

Q. So, you would do the breakfast once, and then you would do the lunch again?

A. The food items, yes. (see id at page 36 lines 15-25).

Q. Does AVI require that the temperature log is monitored just one time? Or does AVI require that there is [sic] measurements taken throughout the course of breakfast or the course of lunch or throughout the course of dinner?

A. I am not sure of the specific recommendation.

Q. Okay. Have you ever seen any other temperature logs other than this one?

A. Yes.

Q. Okay. Those times the other documents that you have seen, were there more than one time of temperature?

A. It depends.

Q. Shouldn't it be the same every single time or every single morning or every single night? (see id at page 38 lines 10-25).

A. I am not sure of the specific recommendation.

Q. Okay. So do you know if there is a recommendation that for lunch or for breakfast or for dinner, there should be more than one occasion where the temperature is taken?

A. I don't know. (see id at page 39 lines 1-7).

On the day of the incident, Villani tested one cup of coffee and one cup of hot water from the brewing machine. She wrote down the coffee was 196 degrees, and the hot water was 192 degrees. (NY St Cts Filing [NYSCEF] Doc No. 167).

Plaintiff testified that late in the afternoon on December 24, 2022, while still in the emergency room, she was laying in bed in the fully upright position (NY St Cts Filing [NYSCEF] Doc No. 133 pages 37-39). She further testified, "I was pulling the little table over to me when the coffee keeled over. It was on a cardboard tray. It wasn't on like a plastic heavy-duty tray. It was flimsy." (see id at page 39 lines 4-7). Plaintiff contended that the coffee had been delivered approximately five to ten minutes prior to her trying to pull it closer to her. (see id at lines 8-11).

Plaintiff testified,

Q And then can you explain to me what happened when you pulled the table closer?

A. When I pulled it [the table with the coffee on it] — my legs were underneath blankets, so I'm just saying that it made that much of a damage that I was underneath blankets. The footboard was steaming of heat, on the footboard, for a while. When I pushed the table [*3]over, it keeled over. My foot had — above the ankle and halfway through the calf was all burnt to the back, and it was sizzling, bubbling. I couldn't think fast enough to get my foot out of the way. It was, like, horrible. (see id at page 41, lines 11-24).

Q. What part of your body did the drink fall on?

A. Above — my leg, my right side, my leg above the ankle and below the calf, like halfway through the calf, it fell on.

Q. Now —

A. It was sizzling and bubbling.

Q. Do you recall what you were wearing at this time?

A. The garment they give you.

Q. So you were not in regular clothes, you were in a hospital gown?

A. Yeah. (see id at page 42, lines 13-25).

Q. Do you recall how many layers of blankets and/or sheets were on you?

A. There was a sheet and a blanket.

Q. Now, after this happened, were you able to, at some point, remove the coffee from your leg or the cup?

A. Yes, I got it up and it was still with the cap on it and it was dripping out.

Q. That brings me to my next question. What kind of cup was the coffee

A. A Styrofoam cup.

Q. Was there a lid on it?

A. There was a lid and it had like a little opening that you drink.

Q. Was it the type of opening on the lid that you have to move back in order to open it?

A. No. No. No. (see id at page 43, lines 6-25).

Q. When it fell on to your leg, your right leg, did the lid come off?

A. No, and it emptied out the whole cup.

Q. At some point, did the cup remain on your leg or the bed or did it fall onto the floor?

A. No, on the bed. So I picked it up and put it on the table, but I was screaming and yelling. And then after a while, a nurse came along. (see id at page 44, lines 2-12).

Q. What did the nurse do?

A. She couldn't believe what happened, and I think she put — this is a while ago. I think she put that cream on it and bandaged it, but that's it. (see id at page 44, lines 18-22).

A note in Plaintiff's chart authored by Nurse Ahrens, on December 24, 2022, at 1:15 p.m., indicates that "Patient is on clear liquid diet and received tray for lunch and there was hot water on the tray for tea. Patient spilled hot water onto blanket and right lower extremity." (NY St Cts Filing [NYSCEF] Doc No. 162 at page 565). The assessment of the injury was redness and blistering of skin noted to right lower extremity and patient complained of pain level as a five out of ten (see id).

The December 24, 2022, entry made at 6:53 PM on Plaintiff's KBC Chart Copy Report indicates that "Burn No.#1. Burn Type scalding: second degree (deep partial thickness); blisters" (see id at page 297).

Plaintiff's Prehospital Care Report Summary dated December 31, 2022, indicates Plaintiff has second degree burns to right shin. (see id at page 697).

Plaintiff's patient discharge document dated January 9, 2023, indicate:

Skin assessed- B/1 lower extremity + 3 edema

R lower extremity second degree burn- partial thickness wound ~ 7x6 in size, Wound [*4]base red with blistering present - Per patient "she lift up a tray at the edge of her bed and it gave way and hot coffee spill on her leg" (see id at page 687).

Plaintiff's discharge instructions dated January 19, 2023, indicate: "Your provider(s) diagnosed you with: Third degree burn of right lower leg" (see id at page 716).

"Summary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law. Since it deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" (see Andre v. Pomeroy, 35 NY2d 361 [1974] citing Millerton Agway Cooperative, Inc. v. Briarcliff Farms, Inc., 17 NY2d 57 [1966]).

"[T]he elements of a cause of action sounding in negligence are: (1) the existence of a duty on the defendant's part as to the plaintiff; (2) a breach of this duty; and (3) an injury to the plaintiff as a result thereof" (see Poon v Nisanov, 162 AD3d 804 [2d Dept 2018] quoting Stukas v Streiter, 83 AD3d 18 [2d Dept 2011]).

"Accordingly, a defendant who moves for summary judgment dismissing a cause of action alleging negligence may sustain his or her initial burden by 'establishing, prima facie, that he or she was not at fault in the happening of the subject accident'" (see id quoting Boulos v. Lerner-Harrington, 124 AD3d 709 [2d Dept 2015] citing Goldstein v Kingston, 153 AD3d 1235 [2d Dept 2017]; Searless v Karczewski, 153 AD3d 957 [2d Dept 2017]; Victor v Daley, 150 AD3d 1307 [2d Dept 2017]; Faust v Gerde, 150 AD3d 1204; Faust v Gerde, 150 AD3d 1204 [2d Dept 2017]).

"In determining a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party" (see Brower v Staten Is. Univ. Hosp., 2024 NYAppDiv LEXIS 6971 [2d Dept 2024] citing Campos v Colon, 227 AD3d 857 [2d Dept 2024]; Khutoryanskaya v Laser & Microsurgery, P.C., 222 AD3d 633 [2d Dept 2023]). "Such a motion 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility'" (see id quoting Gutkina v Max Media & Art, LLC, 227 AD3d 961 [2d dept 2024]).

"[U]nder New York law, a defendant may properly be held liable for the personal injuries caused by his or her having served a beverage that, because of its excessive temperature, was 'unreasonably dangerous for its intended use,' and the drinking or other use of which presented a danger that was not 'reasonably contemplated by the consumer'" (see McClean v National Ctr. for Disability Servs., 30 AD3d 383 [2d Dept 2006] quoting Fung-Yee Ng v Barnes & Noble, Inc., 308 AD2d 340 [1st Dept 2003]).

Julia Villani Rotunno, herein after referred to as Rotunno, is a registered dietician and was employed by AVI as a Patient Services Manager at SIUH on the day of the incident, December 24, 2022. Rotunno provided in her affidavit that:

AVI manages the food service at the Hospital pursuant to a contract. While AVI directs the food service operation, the day-to-day preparation of the food and beverages is [*5]primarily the responsibility of a Hospital employee. AVI does also test the temperatures of the food prior to service to prevent foodborne illnesses. (NY St Cts Filing [NYSCEF] Doc No. 136).

Rotunno contends that "A Hospital employee prepares all of the food and beverages served to patients of the Hospital." (see id). Rotunno continues that:

An AVI Patient Services Manager tests one cup of coffee and one cup of hot water once each to ensure proper brewing temperature for patient satisfaction (i.e. taste). The AVI Patient Services Manager logs the temperature of the coffee and hot water in a log called the "Red Book." As set forth in Exhibit A, the instruction manual for the Brewing Machine recommends that water should be heated between 197 degrees and 205 degrees before brewing coffee.

I was the Patient Services Manager on duty December 24, 2022, the day of the incident at issue in this case. Around 6:55 a.m., I tested one cup of coffee and hot water and logged them in the Red Book as 196 degrees and 192 degrees, respectively. (see id).

Villani testified in her deposition that there is a contract between AVI and SIUH, but she has never seen the contracts nor has a copy of the contract been provided to the Court as an exhibit. (NY St Cts Filing [NYSCEF] Doc No. 135 page 10 lines 19-24).

Villani testified that food is delivered to patients by a food service hourly team member that is employed by Northwell. (see id at page 15 lines 8-11). Villani clarified that the hourly team members work for Northwell, and the management team works for AVI. (see id at lines 21-25). The entire kitchen staff aside from the management team, is Northwell staff. (see id at page 16 lines 3-4).

Villani testified that the "Tray Line/POD Temperature Log-1" records temperatures of hot liquids served with a food service thermometer. (see id at page 28-9). Villani was questioned regarding this process.

Q. That's your handwriting. Okay. I can't really read what it says next to hot water. What number is that?

A. 192.

Q. So, what does that mean 192 next to the hot water?

A. That was the temperature of hot water at that time. (see id at page 29 lines 3-10).

Q. Okay. What time did you record this temperature of the hot water?

A. I believe at that time it says on top, 6:50.

Q. That was when — 50 minutes after you (see id at page 29 lines 21-25) arrived to [sic] work?

A. Yes.

Q. Okay. And when you record the temperature of the hot water, where was the water held? In a container? In what?

A. In a cup.

Q. Okay. Well, so is it for one specific tray?

A. It is just for premeal service to ensure that it meets that temperature standard.

Q. So, this particular measurement, is it only for one premeal or only one meal?

A. Yes. We check the beverages once per day.

Q. Okay. So, does every single tray have a corresponding temperature log?

A. No.

Q. Okay. So, was this temperature log for a specific tray?� Or is it just a specific — [*6]random section of a tray?� I am not really following you.

A. Neither. It is just like before you start serving the food, you take the temperature of the items.

Q. Okay. This log was conducted before (see id at page 30 lines 1-25) you prepared any tray?

A. Correct.

Q. I see. And you took water — and where did you get the water from?

A. From the coffee machine.

Q. Okay. Who makes the coffee? Who prepares the coffee machine — or who prepared the coffee machine?

A. The hourly team members. (see id at page 31 lines 1-9).

Q. So, the hourly team members prepare the coffee. And then, did you take from the coffee into the cup for hot water?

A. Yes.

Q. Okay. So you poured — so you have the coffee machine. You pour the water into the cup of hot water, and then you take the temperature?

A. Correct.

Q. There is there any type of guideline for what the temperature should be for her cup of (see id at page 31 lines 16-25) hot water?

A. I follow the guideline that is listed in the book here.

Q. Where is the guideline listed in the book? Oh, I see. Where it says 190 Fahrenheit?

A. Yes. It says greater than or equal to 190.

Q. Does that mean that the book has a guideline that the hot water should be higher than — 190 or higher?

A. Correct.

Q. Is there any guideline that indicates that the water should have a certain maximum threshold?

A. Not that I am aware of.

Q. So what if the water was to, say, 275 degrees?

A. Is that a question?

Q. Yes.

A. What are you asking?

Q. What if the water was much higher than 192? Was there any procedure in place?

A. I have never seen the water much higher than that.

Q. Okay. When — was the water usually (see id at page 32 lines 1-25) generally the same temperature when you measured it?

A. Yes.

Q. Okay. And then that the coffee 196. When you measured the coffee, according to this document, you poured the coffee into the coffee and then measure the temperature of the coffee?

A. Yes. (see id at page 33 lines 1-8).

Q. Is it your testimony that the guideline, according to the log on the left hand side, dictates the temperature of the coffee or the water to be 190 or greater? Or do you believe that the (see id at page 33 lines 22-25) guideline on the left-hand side dictates the coffee should be 190 or less?

A. 190 or greater.

Q. That's the recommendation?

A. That is what the book says.

Q. Okay. And the book doesn't have a guideline for the maximum threshold, but the temperature could be, right? Is that what you are telling me?

A. Correct. (see id at page 34 lines 1-10).

Q. Okay. And according to this book — according to you, if the water is 220 degrees, that would fall within the guidelines of the book?

A. That would fall within the guidelines of the book. (see id at page 34 lines 20-24).

Q. Okay. Do you check the temperature again a second time? Or is this it?

A. We do the food each meal.

Q. So, you would do the breakfast once, and then you would do the lunch again?

A. The food items, yes. (see id at page 36 lines 20-25).

Q. Is there a reason why there is not a second checklist for each meal or a third checklist or a fourth the checklist for each meal?

A. I don't remember.

Q. Okay. For here, on the bottom page, it says, "Breakfast." It says, "1st, 2nd, 3rd," right?

A. Yes.

Q. Is that each — this is for one — this is for meal, right? Breakfast, right?

A. That is for breakfast, yes.

Q. Normally, was there a second and a third checklist for each of these items? (see id at page 37 lines 13-25).

A. What do you mean?

Q. Well, there is a slot for 1st and a slot for 2nd, and there is a slot for 3rd. But only the 1st is filled out. Is there a reason that the 2nd and the 3rd is not filled out?

A. I am not sure.

Q. Okay. This was the guidelines for AVI, right?

A. Yes.

Q. Okay. Does AVI require that the temperature log is monitored just one time? Or does AVI require that there is [sic] measurements taken throughout the course of breakfast or the course of lunch or throughout the course of dinner?

A. I am not sure of the specific recommendation.

Q. Okay. Have you ever seen any other temperature logs other than this one?

A. Yes.

Q. Okay. Those times the other documents that you have seen, were there more than one time of temperature?

A. It depends.

Q. Shouldn't it be the same every single time or every single morning or every single night? (see id at page 38 lines 1-25).

A. I am not sure of the specific recommendation.

Q. Okay. So, do you know if there is a recommendation that for lunch or for breakfast or for dinner, there should be more than one occasion where the temperature is taken?

A. I don't know.

Q. Okay. According to this book, the temperature was taken for coffee and water on one [*7]occasion for breakfast, correct?

A. Correct.

Q. And it wasn't taken a second time, and it wasn't taken a third time, correct?

A. Not for the book.

Q. But the book does have three entries, correct? There is three spaces for entries, right?

A. There are three slots for entries in the book. (see id at page 39 lines 1-18).

Q. Okay. And we discussed you logging the temperature. But I just want to clarify, did you yourself take that sample temperature with the thermometer?

A. Yes.

Q. The logbook that we discussed, is that provided by AVI?

A. Yes. (see id at page 45 lines 12-19).

Defendant AVI provides the affidavit of Peter F. Goggi, President of the Tea Association of the U. S. A. who testifies that:

The industry standard temperature for brewing hot tea in a commercial setting is 200 degrees[.] The industry standard temperature for service of hot tea (water poured into cup) in a commercial setting is 191 degrees to 196 degrees which reflects the assumption that the temperature will naturally cool down during the brewing process, recommended to be from 3 — 5 minutes, or to the consumers' taste. (NY St Cts Filing [NYSCEF] Doc No. 137).

Julia Villani, R. D., testified that AVI manages the food service at SIUH, directs the food service operation, and tests the temperatures of the food prior to service to prevent foodborne illnesses, while the day-to-day preparation of the food and beverages is primarily the responsibility of SIUH employees. (NY St Cts Filing [NYSCEF] Doc No. 136). There is no dispute that the hot liquid, be it coffee or hot water, that allegedly fell on the Plaintiff originated in SIUH's food services area managed by AVI. The question of whether the liquid was unreasonably hot remains at issue. Ms. Villani testified that AVI managed the food service area, directed the food service operation, and tested the temperatures of the food prior to service to prevent foodborne illnesses.

No contracts, procedures, guidelines, or best practices were provided by AVI to give any incite as to exactly how AVI managed and directed hospital employees. AVI was apparently responsible for resting the temperature of samples pertaining to each meal to ensure that temperatures were high enough to prevent foodborne illness that could be spread to patients such as the Plaintiff.

Questions are raised by the Tray Line/POD Temperature Log - 1, (NY St Cts Filing [NYSCEF] Doc No. 167), which is provided by AVI and provides space for three readings per meal, but only one reading recorded. When questioned about why these additional data positions were unfilled, Ms. Villani testified that she was unsure. When questioned further about whether she had seen other logbooks with additional readings recorded per meal she responded that it depends and could give no further clarification.

According to the testimony and affidavit provided to this Court, a key component of AVI's responsibility is to prevent the spread of foodborne illness to patients such as the Plaintiff, by ensuring that meals are at a minimum temperature. No information was provided how such rejection process was conducted and if additional readings were required to ensure the safety of patients such as the Plaintiff.

Ms. Villani testified that the temperature requirement was greater than or equal to 190 [*8]degrees. When questioned regarding significantly higher readings, such as 275 degrees, she was unresponsive. When questioned regarding a higher temperature than previously recorded, such as 220 degrees, Ms. Villani responded it was in the range. The instruction manual for the Brewing Machine recommends that water should be heated between 197 degrees and 205 degrees before brewing coffee. (NY St Cts Filing [NYSCEF] Doc No. 132). While it is possible that an exceptionally high temperature beverage could slip through a multi-tiered screening process in the best of circumstances, it seems odd that an aberration with a massively high temperature would simply be dismissed as it was above 190 degrees.

"In determining a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party" (see Brower v Staten Is. Univ. Hosp., 2024 NYAppDiv LEXIS 6971 [2d Dept 2024] citing Campos v Colon, 227 AD3d 857 [2d Dept 2024]; Khutoryanskaya v Laser & Microsurgery, P.C., 222 AD3d 633 [2d Dept 2023]). "Such a motion 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility'" (see id quoting Gutkina v Max Media & Art, LLC, 227 AD3d 961 [2d Dept 2024]).

"A motion for summary judgment 'shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party'" (see Swain v Rahman, 2024 NYAppDiv. LEXIS 6412 [2d Dept 2024] quoting CPLR § 3212 [b]; citing Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Bank of NY Mellon v Gordon, 171 AD3d 197 [2d Dept 2019]).

"Such a motion must be supported 'by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions' (CPLR 3212[b]). To make a prima facie showing, the moving party must 'demonstrate its entitlement to summary judgment by submission of proof in admissible form'" (see id quoting Viviane Etienne Med. Care v Country-Wide Ins. Co., 25 NY3d 498 [2015]; Zuckerman v New York, 49 NY2d 557 [1980]).

Ms. Villani testified that AVI managed the food service area, directed the food service operation, and tested the temperatures of the food prior to service to prevent foodborne illnesses. No evidence has been submitted by AVI in the form affidavits, depositions, contracts, procedures, guidelines, standards, or best practices demonstrating the amount of or lack thereof of control exercised by AVI in managing and directing the food service area and operation and in ensuring patients of the hospital such as the Plaintiff were protected from foodborne illness.

Although the AVI claims to not have a duty, the contract they have with the hospital to manage the food service area and direct the food service operation creates an issue of fact as to the extent of their control and does that control manifest a duty by ARI to the patients of SIUH/Northwell to ensure the liquids that are heated for service to patients are heated to reasonable temperatures.

"The elements of a cause of action alleging common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach of that duty constituted a proximate cause of the injury" (see Roberson v Wyckoff Hgts. Med. Ctr., 123 AD3d 791 [2d Dept 2014] citing Turcotte v Fell, 68 NY2d 432 [1986]; Jiminez v Shahid, 83 AD3d 900 [2d Dept 2011]; Ruiz v Griffin, 71 AD3d 1112 [2d Dept 2010]).

Here AVI has failed to demonstrate a prima facie showing that in its responsibilities of managing the food service area, directing the food service operation, and testing the temperatures of the food prior to service to prevent foodborne illnesses, it did not owe the patients of SIUH/Northwell such as the Plaintiff a duty of care.

"The general duty of care in a negligence action requires an individual 'to use that degree of care that a reasonably prudent person would have used under the same circumstances'" (see Shepard v Power, 219 AD3d 769 [2d Dept 2023] quoting Borrerro v Haks Group, Inc., 165 AD3d 1216 [2d Dept 2018]).

Peter F. Goggi, President of the Tea Association of the U. S. A. provided in his affidavit that "[t]he industry standard temperature for brewing hot tea in a commercial setting is 200 degrees[.]" (NY St Cts Filing [NYSCEF] Doc No. 137). The instruction manual for the Brewing Machine recommends that water should be heated between 197 degrees and 205 degrees before brewing coffee. (NY St Cts Filing [NYSCEF] Doc No. 132).

When Ms. Villani's was questioned regarding significantly higher readings, such as 275 degrees, which is seventy degrees higher than the Brewing Machine recommends and seventy-five degrees higher than recommended by Mr. Goggi, she was unresponsive. (NY St Cts Filing [NYSCEF] Doc No. 135). When Ms. Villani was questioned regarding a higher temperature than previously recorded, such as 220 degrees, she responded it was in the range, despite being fifteen degrees higher than the Brewing Machine recommends and twenty degrees higher than recommended by Mr. Goggi. (see id).

Here there is an issue of fact as to whether AVI used the degree of care that a reasonably prudent person would have used under the same circumstances. (see Shepard v Power, 219 AD3d 769 [2d Dept 2023] quoting Borrerro v Haks Group, Inc., 165 AD3d 1216 [2d Dept 2018]).

Accordingly, since the Defendant AVI failed to establish their prima facie entitlement to judgment as a matter of law, Defendant AVI's Motion Sequence No. 008 request for summary judgment pursuant to CPLR § 3212 is DENIED with prejudice.

Defendants SIUH/Northwell submit the Expert Affirmation of Michael Dobryansky, M.D., who offers his medical opinion that the third degree burn that the Plaintiff received to her right lower extremity, when a cup of hot water fell onto it was not the result of negligence by the Defendants SIUH/Northwell. (NY St Cts Filing [NYSCEF] Doc No. 155). In forming his conclusions, Dr. Dobryansky relies on the previous testimony of Ms. Villani, who testified that she recorded the temperature of the coffee as 196 degrees and the hot water as 192 degrees. (see id at page 4). Dr. Dobryansky further cites the Food Temperature Logs maintained by AVI. (see id).

Dr. Dobryansky offers several scenarios to explain how depending on the patient, a third-degree burn can be sustained by an adult from a hot liquid with a temperature as low as 125 degrees in as little as five minutes. (see id). Dr. Dobryansky further contends that in this case, the patient had a blanket over her right leg which likely exacerbated the evolvement of the burn into a third degree burn within seconds. (see id).

Plaintiff submits a report from Wellington J. Davis III, MD, FACS. Dr. Wellington provides that:

The temperature at which a scald burn can occur is dependent on the length of time the skin is exposed to the water:

Scalding times of hot water

120 degrees- 4-5 minutes to cause a full-thickness injury (third degree burn)

130 degrees- 30 seconds to cause a full-thickness injury (third degree burn)

140 degrees- 1-6 seconds to cause a full thickness injury (third degree burn)

150 degrees- 0.5-2 seconds to cause a full-thickness injury (third degree burn)

The time to scalding is shorter in the geriatric population as their skin is thinner.

Considering the coffee was transported from one section of the hospital and there was even transport time to allow for some cooling, the coffee was obviously exceedingly hot. It was well over 155 degrees Fahrenheit. The burn was instantaneous and there was a significant contact time due to blankets and sheets keeping the hot coffee in contact with her skin until they were removed. (NY St Cts Filing [NYSCEF] Doc No. 173).

Plaintiff further submits a report from Kenneth R. Diller, Sc.D, P.E., a biomedical engineer specializing generally in bioheat transfer. Mr. Diller provides in his report that:

The injuries that Ms. Clemente suffered were third degree (full thickness) burns. Data has been well documented in the scientific and medical literature for many decades that defines the minimum combinations of time and surface temperature required to produce threshold level second and third degree burns in humans. The data show a standard inverse exponential relationship between time of exposure and temperature at foe surface of the skin. At 160°, the time to produce a threshold third degree burn is about 10 seconds; at 165°, about 7 seconds; at 170°, about 5 seconds; at 180°, about 3 seconds; at 190°, about 2 seconds. The conditions to produce a threshold second degree burn are 140° at about 5 seconds, 150° at about 2 seconds and 158° at about 1 second. At 136° (the significance of which I will address below), the conditions to produce a second degree bum increase to about 10 seconds. This data is for exposure of bare skin of an adult to the indicated temperatures. (NY St Cts Filing [NYSCEF] Doc No. 171). In his analysis, Mr. Diller further contends that:

The hot coffee as served by Northwell Health at 190° was well within the range of temperatures that would cause a third degree burn as a result of a spill onto Ms. Clemente. Coffee served at 190° is highly dangerous plus an extra amount of danger.

Analysis of the heat transfer and the burn process indicate that the hot coffee as served at a temperature on the order of 190° would cause the level of scald burn severity suffered by Ms. Clemente. This temperature range is consistent with AVI/Northwell Health stated serving temperature standards that arc well above the threshold for causing scald injuries to patients.

A cup of hot coffee spilled onto bare or nearly bare skin in the temperature range of 190° will cause a severe burn nearly instantaneously. Once the spill occurs with a hot liquid at such a high temperature the injury process is immediately set in motion, and there is no remedial action a spill victim can take to reverse the process. (see id).

Nurse Ahrens testified regarding the circumstances leading up to and surrounding Plaintiff's injury.

Q. So how quickly — scratch that. How were you made aware that the hot water spilled on the patient's lower extremity?

A. I just remember going over to the bedside and seeing that the sheets were wet. I don't remember how I was made aware.

Q. Did you hear the patient scream?

A. No.

Q. Did you hear the patient call out to you?

A. No.

Q. Did another individual in the hospital advise you that this happened?

A. I don't really remember. (NY St Cts Filing [NYSCEF] Doc No. 165 at page 29 lines 10-25).

Q. After the incident, did you speak to the dietician?

A. No.

Q. Did you speak to the server that provided the tray?

A. No.

Q. I think I might have asked you, do you know the identity of the server that provided the tray?

A. No.

Q. After this incident, did you take any efforts or measures to determine the identity of the person that provided the tray?

A. No.

Q. Did you speak to any of the nurses on the ER about the incident?

A. I'm sure at that time, yes.

Q. Do you recall the names of the nurses you spoke to?

A. No.

Q. On that day, December 24th, 2022, can you tell me the names of the nurses that were on shift with you? (see id at page 30 lines 2-25).

A. No.

Q. Have you ever experienced an incident such as this, hot liquid spilling onto a patient's leg before?

A. No.

Q. Is this the first time you've ever experienced any type of liquid falling onto a patient's leg? (see id at page 31 lines 2-9).

A. Other than like, maybe like a water spill here and there, not liquids, no. (see id at lines 12-14).

Q. Did you ask the patient when this happened?

A. I don't recall.

Q. But this is the first time you've ever seen something like this happen?

A. The first time that it's ever happened to a patient of mine, yes.

Q. And you didn't ask her how this happened and when it happened?

A. No. (see id at page 33 lines 11-21).

Q. And did she say — when you arrived on the scene, did she say for how long the liquid was on her leg or on the blanket?

A. I really don't remember.

Q. Just to clarify, the blanket was on her leg; right?

A. Yes.

Q. Did you look at the cup that was on the tray or was there a cup on the tray?

A. I don't remember.

Q. Do you recall if there was an empty cup or half full cup? (see id at page 34 lines 12-25).

A. I don't remember seeing a cup.

Q. Did you touch her leg?

A. No.

Q. Well, did you treat her after this happened? (see id at page 35 lines 2-6).

A. I removed the blanket from her leg. I don't, like, render any type of treatment without a doctor's order, so I left the bedside to call the doctor but I didn't treat her leg in any way.

Q. I see it says redness and blistering of skin to RLE, is that right leg extremity?

A. Right lower extremity.

Q.Dr. Bux made aware of situation, awaiting evaluation of injury and further orders. Is that what you were just referencing?

A. Yes. (see id at lines 11-24).

Q. The blanket that you removed from her leg, was it wet?

A. Yes.

Q. If you were to describe it as soaking wet, mildly wet, or just damp, which one would you describe?

A. Mildly wet.

Q. Did you touch her leg, 1ike physically touch her leg?

A. No.

Q. So it says redness and blistering of skin, is that your observation?

A. Yes.

Q. Your visual observation, not your physical observation?

A. Yes.

Q. Do you recall around what time, if at all, did Dr. Bux arrive to the patient after that incident?

A. I don't recall. (see id at page 36 lines 12-25).

"The elements of a cause of action alleging negligence are (1) the existence of a duty on the defendant's part as to the plaintiff; (2) a breach of this duty; and (3) an injury to the plaintiff as a result thereof" (see Brower v Staten Is. Univ. Hosp., 2024 NYAppDiv LEXIS 6971 [2d Dept 2024 quoting McKay v Town of Southampton, 220 AD3d 59 [2d Dept 2023]; citing Poon v Nisanov, 162 AD3d 804 [2d Dept 2018]).

"A defendant moving for summary judgment dismissing a cause of action alleging negligence may generally sustain his or her prima facie burden by negating a single essential element of that cause of action" (see id citing McKay v Town of Southampton, 220 AD3d 59 [2d Dept 2023]; citing Poon v Nisanov, 162 AD3d 804 [2d Dept 2018]).

"In determining a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party" (see id citing Campos v Colon, 227 AD3d 857 [2d Dept 2024]; Khutoryanskaya v Laser & Microsurgery, P.C., 222 AD3d 633 [2d Dept 2023]).

Defendants SIUH/Northwell contend that the liquid provided to the Plaintiff in Defendants emergency room was not excessive or unreasonably hot and thus there is no breach of a duty as required under Plaintiff's negligence claim.

"Under New York law, a defendant may properly be held liable for the personal injuries caused by the service of a beverage that, because of its excessive temperature, was unreasonably dangerous for its intended use, and the drinking or other use of which presented a danger that was not reasonably contemplated by the consumer" (see Khanimov v McDonald's Corp., 121 [*9]AD3d 1052 [2d Dept 2014] citing McClean v National Ctr. for Disability Servs., 30 AD3d 383 [2d Dept 2006]; Fung-Yee Ng v Barnes & Noble, Inc., 308 AD2d 340 [1st Dept 2003]).

Defendants SIUH/Northwell contend that the Food Logs maintained by Defendant, AVI, clearly indicate that the hot liquid, whether it was coffee or hot water, dispensed and served on the date in question was fixed at a temperature in accordance with industry standard. Specifically, those logs demonstrate that on the date in question the temperature of coffee was recorded as 196 degrees and the temperature of hot water as 192 degrees.

Julia Villani Rotunno, AVI's Patient Services Manager at SIUH testified:

AVI manages the food service at the Hospital pursuant to a contract. While AVI directs the food service operation, the day-to-day preparation of the food and beverages is primarily the responsibility of a Hospital employee. AVI does also test the temperatures of the food prior to service to prevent foodborne illnesses. (NY St Cts Filing [NYSCEF] Doc No. 136).

An AVI Patient Services Manager tests one cup of coffee and one cup of hot water once each to ensure proper brewing temperature for patient satisfaction (i.e. taste). The AVI Patient Services Manager logs the temperature of the coffee and hot water in a log called the "Red Book." As set forth in Exhibit A, the instruction manual for the Brewing Machine recommends that water should be heated between 197 degrees and 205 degrees before brewing coffee.

I was the Patient Services Manager on duty December 24, 2022, the day of the incident at issue in this case. Around 6:55 a.m., I tested one cup of coffee and hot water and logged them in the Red Book as 196 degrees and 192 degrees, respectively. (see id).

Ms. Villani Rotunno testified that only one test of temperature is made per meal, although the logbook provided by AVI provides up to three slots for temperature measurement readings. (see id). Peter F. Goggi, President of the Tea Association of the U. S. A. provided in his affidavit that "[t]he industry standard temperature for brewing hot tea in a commercial setting is 200 degrees[.]" (NY St Cts Filing [NYSCEF] Doc No. 137). The instruction manual for the Brewing Machine recommends that water should be heated between 197 degrees and 205 degrees before brewing coffee. (NY St Cts Filing [NYSCEF] Doc No. 132).

Despite this information provided there remain issues of fact to be determined. The testing of the coffee and hot water temperatures recorded by AVI represent a sampling of only one cup per liquid per meal. It is unknown where in the process the test was made in relation to when the cup of hot liquid that was made which resulted in the Plaintiff's injury. While the evidence indicates that the trend of recordings would seem to indicate that hot beverages fell within a standard range, it is unknown precisely what the temperature was of the Plaintiff's beverage.

Further New York law does not provide a redline temperature for beverages that automatically trigger them being at an excessive temperature, the law merely provided that the "excessive temperature was unreasonably dangerous for its intended use, and the drinking or other use of which presented a danger that was not reasonably contemplated by the consumer" (see Khanimov v McDonald's Corp., 121 AD3d 1052 [2d Dept 2014]).

Defendants' expert Dr. Dobryansky offered several scenarios to explain how depending on the patient, a third-degree burn can be sustained by an adult from a hot liquid with a temperature as low as 125 degrees in as little as five minutes. (NY St Cts Filing [NYSCEF] Doc No. 155).

While Defendants contend "[t]he industry standard temperature for brewing hot tea in a commercial setting is 200 degrees" (NY St Cts Filing [NYSCEF] Doc No. 137) and the instruction manual for the Brewing Machine recommends that water should be heated between 197 degrees and 205 degrees before brewing coffee (NY St Cts Filing [NYSCEF] Doc No. 132), there is no testimony regarding what the proper temperature of the liquids should be when served and consumed. Foods and beverages are required to be heated to certain temperature to prevent the spread of foodborne illness and to improve taste, however, that does not automatically mean that people consume those items at temperatures that would result in second- and third-degree burns.

Plaintiff testified that late in the afternoon on December 24, 2022, while still in the emergency room, she was lying in bed, when she pulled the tray with a hot beverage toward her, and it fell on her burning her leg above the ankle and below the calf. (NY St Cts Filing [NYSCEF] Doc No. 133). Plaintiff further testified that the hot beverage had been delivered approximately five to ten minutes prior to her trying to pull it closer to her. (see id).

A note in Plaintiff's chart authored by Nurse Ahrens, on December 24, 2022, at 1:15 p.m., indicates that "Patient is on clear liquid diet and received tray for lunch and there was hot water on the tray for tea. Patient spilled hot water onto blanket and right lower extremity." (NY St Cts Filing [NYSCEF] Doc No. 162 at page 565). The assessment of the injury was redness and blistering of skin noted to right lower extremity and patient complained of pain level as a five out of ten (see id).

The December 24, 2022, entry made at 6:53 PM on Plaintiff's KBC Chart Copy Report indicates that "Burn #1. Burn Type scalding: second degree (deep partial thickness); blisters" (see id at page 297).

Plaintiff's Prehospital Care Report Summary dated December 31, 2022, indicates Plaintiff has second degree burns to right shin. (see id at page 697).

Plaintiff's patient discharge document dated January 9, 2023, indicate:

Skin assessed- B/1 lower extremity + 3 edema

R lower extremity second degree burn- partial thickness wound ~ 7x6 in size, Wound base red with blistering present - Per patient "she lift up a tray at the edge of her bed and it gave way and hot coffee spill on her leg" (see id at page 687).

Plaintiff's discharge instructions dated January 19, 2023, indicate: "Your provider(s) diagnosed you with: Third degree burn of right lower leg" (see id at page 716).

This evidence, when viewed in the light most favorable to the Plaintiff, demonstrates the existence of triable issues of fact (see Brower v Staten Is. Univ. Hosp., 2024 NYAppDiv LEXIS 6971 [2d Dept 2024] citing Gutkina v Max Media & Art, LLC, 227 AD3d 961 [2d Dept 2024]).

Accordingly, Defendants SIUH and Northwell have failed to establish their prima facie entitlement to summary judgment as a matter of law and SIUH/Northwell's Motion Sequence No. 009 request for summary judgment pursuant to CPLR § 3212 is DENIED with prejudice.

It is hereby ORDERED, that Defendant AVI's Motion Sequence No. 008 request for summary judgment pursuant to CPLR § 3212 is DENIED with prejudice; and it is further,

ORDERED, that Defendants SIUH and Northwell's Motion Sequence No. 009 request for summary judgment pursuant to CPLR § 3212 is DENIED with prejudice; and it is further,

ORDERED, that counsel shall appear for a conference on the next appearance date of [*10]February 25, 2025, at 9:30 AM, at the Courthouse located at 26 Central Avenue, Courtroom 330, Staten Island, NY; and it is further,

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

The foregoing shall constitute the Decision and Order of this Court.