INDEX NO.

161476/2014

FILED: NEW YORK COUNTY CLERK 11/18/2014 06:07 PM

NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 11/18/2014

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
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:

GEORGINA SPENCE,
Plaintiff,

Index No. __________

:
:

- against -

INSOMNIA COOKIES INC.

and KEITH MOODY,

:
Defendants.

Plaintiff designates
New York County as
the place of trial
The basis of venue is
Plaintiffs residence

Summons
Plaintiff resides at
222 East 82nd Street
New York, NY 10028

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To the above named Defendants:
YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action and to
serve a copy of your Verified Answer on the undersigned attorneys, McCarthy | Kelly LLP,
representing plaintiff, within twenty (20) days after the service of this Summons, exclusive of the
day of service (or within 30 days after the service is complete if this Summons is not personally
delivered to you within the State of New York).
Please take notice that this action is based on a negligence cause of action, that plaintiff
seeks money damages for personal injuries and that in case of your failure to appear or answer,
judgment will be taken against you by default for the relief demanded in the Verified Complaint.
Dated:

New York, NY
November 19, 2014
McCarthy | Kelly LLP
Attorneys for Plaintiff

By:_______________________
William P. Kelly
52 Duane Street
New York, NY 10007
(212) 732-5040
Defendants addresses:
Insomnia Cookies Inc.
1579 Second Avenue
New York, NY 10028

Keith Moody
2134 Amsterdam Avenue
New York, NY 10032

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
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GEORGINA SPENCE,
:
Plaintiff,
- against INSOMNIA COOKIES INC.
and KEITH MOODY,

Index No. __________

:
:

VERIFIED
COMPLAINT

:
Defendants.
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Plaintiff Georgina Spence by her attorneys McCarthy | Kelly LLP as and for her Verified
Complaint as against defendants Insomnia Cookies Inc. and Keith Moody, upon information and
belief, allege as follows:
First Cause of Action
Assault and Battery
1.

At all times herein mentioned plaintiff Georgina Spence was and is a resident of the

County of New York, City and State of New York with a residence at 222 East 82nd Street, New
York, NY 10028.
2.

Upon information and belief, at all times hereinafter mentioned, defendant Insomnia

Cookies was and still is was and is a domestic corporation duly organized and existing under and
pursuant to the laws of the State of Delaware and has its principal place of business at 1579
Second Avenue, New York, NY 10028 and licensed to do business in the State of New York.
3.

Upon information and belief, at all times hereinafter mentioned, defendant Insomnia

Cookies was and still is was and is a foreign corporation doing business within the state of New
York with a location at 1579 Second Avenue, New York, NY 10028.
4.

Upon information and belief, at all times hereinafter mentioned, defendant Keith

Moody was and is an individual, a resident of the State, City and County of New York with a
residence at 2134 Amsterdam Avenue, New York, NY 10032.
5.

Upon information and belief, at all times herein mentioned, defendant Insomnia

Cookies Inc. operated a retail store/bakery at 1579 Second Avenue, New York, NY 10028
(hereinafter the premises).
6.

Upon information and belief, at all times herein mentioned, defendant Insomnia

Cookies Inc. owned the premises.

7.

Upon information and belief, at all times herein mentioned, defendant Insomnia

Cookies Inc. operated the premises.

8.

Upon information and belief, at all times herein mentioned, defendant Insomnia

Cookies Inc. maintained the premises.

9.

Upon information and belief, at all times herein mentioned, defendant Insomnia

Cookies Inc. managed the premises.

10.

Upon information and belief, at all times herein mentioned, defendant Insomnia

Cookies Inc. controlled the premises.

11.

Upon information and belief, at all times herein mentioned, defendant Insomnia

Cookies Inc. provided security within the premises.

12.

Upon information and belief, at all times herein mentioned, defendant Insomnia

Cookies Inc. hired individuals as employees to act in various capacities for purposes of operating
and conducting the daily affairs of the business establishment known as Insomnia Cookies Inc.
within the premises.
13.

Upon information and belief, at all times herein mentioned, defendant Insomnia

Cookies Inc. hired individuals as employees to act as security personnel within the premises of the

business establishment known as Insomnia Cookies Inc.

14.

Upon information and belief, at all times herein mentioned, defendant Insomnia

Cookies Inc. hired defendant Keith Moody as an employee within the premises to act as a delivery
man for the business establishment known as Insomnia Cookies Inc.
15.

Upon information and belief, at all times herein mentioned, defendant Insomnia

Cookies Inc. hired defendant Keith Moody as an employee within the premises to act as a manager
for the business establishment known as Insomnia Cookies Inc.
16.

Upon information and belief, at all times herein mentioned, defendant Insomnia

Cookies Inc. hired defendant Keith Moody as an employee within the premises to act as a member
of the security staff for the business establishment known as Insomnia Cookies Inc.
17.

Upon information and belief, at all times herein mentioned, defendant Keith Moody

was acting in the course of his employment with defendant Insomnia Cookies Inc.
18.

That on November 3, 2014 plaintiff Georgina Spence was lawfully within the

premises of the establishment owned, operated, maintained, controlled, managed, maintained,

controlled, secured by defendant Insomnia Cookies Inc.
19.

On November 3, 2014, defendant Insomnia Cookies Inc. as the owner, operator,

supervisor and manager of the premises and the employees within the premises had a duty to
protect the plaintiff from injury while plaintiff was lawfully within the premises.
20.

That on November 3, 2014 plaintiff Georgina Spence was violently contacted by

defendants employee Keith Moody without cause, provocation or justification and while
plaintiff was lawfully within the premises.
21.

That on November 3, 2014 plaintiff Georgina Spence was violently contacted by

defendants employee Keith Moody without cause, provocation or justification while in the

course of his employment as an employee of defendant Insomnia Cookies Inc. and while plaintiff
was lawfully within the premises.
22.

That as a result of the foregoing plaintiff Georgina Spence was seriously and

permanently injured.
23.

That said occurrence and the resulting injuries to plaintiff Georgina Spence were

caused solely and wholly by reason of the negligence and carelessness of defendant Insomnia
Cookies Inc. in the ownership, operation, management, maintenance, control, security and
supervision of the premises and employees within the premises.
24.

That as a result of the foregoing, plaintiff Georgina Spence was injured solely and

wholly as a result of the negligence, carelessness and recklessness of the defendants Insomnia
Cookies Inc. and Keith Moody and/or each of them, without any negligence on the part of the
plaintiff contributing thereto.
25.

That by reason of the foregoing, plaintiff Georgina Spence has been damaged in

an amount in excess of the jurisdictional limits of all lower Courts in which this action may
otherwise have been brought.
26.

The limitations on liability set forth in CPLR Section 1601 do not apply to this

27.

The limitations on liability set forth in CPLR Section 1601 do not apply to this

action.

action by reason of one or more of the exemptions set forth in CPLR Section 1602.
Second Cause of Action
Respondeat Superior
28.

Plaintiff repeats, reiterates and realleges the allegations set forth in the paragraphs

above as if set forth fully herein and at length.

29.

That defendant employer Insomnia Cookies Inc. is vicariously liable for its

employee Keith Moodys negligent and/or intentional acts of violently contacting plaintiff
Georgina Spence without cause, provocation or justification while in the course of his
employment as those acts were committed within the scope of the employees employment.
30.

That defendant employer Insomnia Cookies Inc. is vicariously liable for its

employee defendant Keith Moodys negligent and/or intentional acts of violently contacting
plaintiff Georgina Spence without cause, provocation or justification while in the course of his
employment as those acts and the employees conduct was generally foreseeable and a natural
consequence of the employment.
31.

That defendant employer Insomnia Cookies Inc. is vicariously liable for its

employee Keith Moodys negligent and/or intentional acts of violently contacting plaintiff
Georgina Spence without cause, provocation or justification while in the course of his
employment as those acts and the employees violent conduct could have been reasonably
anticipated by defendant employer Insomnia Cookies Inc.
32.

That defendant employer Insomnia Cookies Inc. is vicariously liable for its

employee defendant Keith Moodys negligent and/or intentional acts of violently contacting
plaintiff Georgina Spence without cause, provocation or justification while in the course of his
employment as those acts by defendant employee Keith Moody were a minor deviation from
work-related activities is still acting with the scope of his employment for the purposes of
respondeat superior.
33.

That as a result of the foregoing plaintiff Georgina Spence was seriously and

permanently injured.
34.

That said occurrence and the resulting injuries to plaintiff Georgina Spence were

caused solely and wholly by reason of the negligence and carelessness of defendant Insomnia

Cookies Inc. in the ownership, operation, management, maintenance, control, security and
supervision of the premises and employees within the premises.
35.

That as a result of the foregoing, plaintiff Georgina Spence was injured solely and

wholly as a result of the negligence, carelessness and recklessness of the defendants Insomnia
Cookies Inc. and Keith Moody and/or each of them, without any negligence on the part of the
plaintiff contributing thereto.
36.

That by reason of the foregoing, plaintiff Georgina Spence has been damaged in

an amount in excess of the jurisdictional limits of all lower Courts in which this action may
otherwise have been brought.
37.

The limitations on liability set forth in CPLR Section 1601 do not apply to this

38.

The limitations on liability set forth in CPLR Section 1601 do not apply to this

action.

action by reason of one or more of the exemptions set forth in CPLR Section 1602.
Third Cause of Action
Negligent Hiring/Supervision/Retention
39.

Plaintiff repeats, reiterates and realleges the allegations set forth in the paragraphs

above as if set forth fully herein and at length.

40.

That defendant employer Insomnia Cookies Inc. negligently hired and/or retained

defendant employee Keith Moody with knowledge of defendant employees propensity for the
type of behavior which resulted in plaintiffs injuries in this action.
41.

That defendant employer Insomnia Cookies Inc. negligently placed the defendant

employee Keith Moody in a position to cause foreseeable harm, which most probably would not
have occurred had the employer taken reasonable care in the hiring of employees.
42.

That defendant employer Insomnia Cookies Inc. negligently hired and/or retained

defendant employee Keith Moody, negligently placed defendant employee Keith Moody in a
position to cause foreseeable harm, which plaintiff would not have been subjected to had defendant
employer Insomnia Cookies Inc. taken reasonable care in supervising or retaining the defendant
employee Keith Moody.
43.

That defendant employer Insomnia Cookies Inc. knew or should have known of the

defendant employee Keith Moodys propensity for the conduct that caused plaintiffs injuries.
44.

That defendant employer Insomnia Cookies Inc. negligently failed to properly

train and/or supervise defendant employee Keith Moody.

45.

That as a result of the foregoing plaintiff Georgina Spence was seriously and

permanently injured.
46.

That said occurrence and the resulting injuries to plaintiff Georgina Spence were

caused solely and wholly by reason of the negligence and carelessness of defendant Insomnia
Cookies Inc. in the ownership, operation, management, maintenance, control, security and
supervision of the premises and employees within the premises.
47.

That as a result of the foregoing, plaintiff Georgina Spence was injured solely and

wholly as a result of the negligence, carelessness and recklessness of the defendants Insomnia
Cookies Inc. and Keith Moody and/or each of them, without any negligence on the part of the
plaintiff contributing thereto.
48.

That by reason of the foregoing, plaintiff Georgina Spence has been damaged in

an amount in excess of the jurisdictional limits of all lower Courts in which this action may
otherwise have been brought.
49.
action.

The limitations on liability set forth in CPLR Section 1601 do not apply to this

50.

The limitations on liability set forth in CPLR Section 1601 do not apply to this

action by reason of one or more of the exemptions set forth in CPLR Section 1602.
Fourth Cause of Action
Inadequate Security
51.

Plaintiff repeats, reiterates and realleges the allegations set forth in the paragraphs

above as if set forth fully herein and at length.

52.

That defendant employer Insomnia Cookies Inc. negligently failed to provide

adequate security to plaintiff while plaintiff was lawfully within the premises.
53.

That defendant employer Insomnia Cookies Inc. negligently failed to provide

adequate security to plaintiff while plaintiff was lawfully within the premises and while
defendant had knowledge of defendant employee Keith Moodys propensity for the type of
behavior which resulted in plaintiffs injuries in this action.
54.

That defendant employer Insomnia Cookies Inc. negligently failed to safeguard

plaintiff Georgina Spence, a 62 year old woman, following a heated verbal altercation between
plaintiff and defendants employee Keith Moody, a 21 year old man in a position to cause
foreseeable harm, which most probably would not have occurred had the employer taken
reasonable care in safeguarding plaintiff.
55.

That defendant employer Insomnia Cookies Inc. knew or should have known of the

defendant employee Keith Moodys propensity for the conduct that caused plaintiffs injuries and
negligently failed to take reasonable measures to protect and provide security to the plaintiff.
56.

That as a result of the foregoing plaintiff Georgina Spence was seriously and

permanently injured.
57.

That said occurrence and the resulting injuries to plaintiff Georgina Spence were

caused solely and wholly by reason of the negligence and carelessness of defendant Insomnia

Cookies Inc. in the ownership, operation, management, maintenance, control, security and
supervision of the premises and employees within the premises.
58.

That as a result of the foregoing, plaintiff Georgina Spence was injured solely and

wholly as a result of the negligence, carelessness and recklessness of the defendants Insomnia
Cookies Inc. and Keith Moody and/or each of them, without any negligence on the part of the
plaintiff contributing thereto.
59.

That by reason of the foregoing, plaintiff Georgina Spence has been damaged in

an amount in excess of the jurisdictional limits of all lower Courts in which this action may
otherwise have been brought.
60.

The limitations on liability set forth in CPLR Section 1601 do not apply to this

61.

The limitations on liability set forth in CPLR Section 1601 do not apply to this

action.

action by reason of one or more of the exemptions set forth in CPLR Section 1602.
Fifth Cause of Action
Negligence
62.

Plaintiff repeats, reiterates and realleges the allegations set forth in the paragraphs

above as if set forth fully herein and at length.

63.

On November 3, 2014, defendant Insomnia Cookies Inc. owned, operated,

managed, maintained, controlled, secured and supervised the premises and employees within the
premises.
64.

On November 3, 2014, defendant Insomnia Cookies Inc. as the owner, operator,

supervisor and manager of the premises and the employees within the premises had a duty to
protect the plaintiff from injury while plaintiff was lawfully within the premises.
65.

That on November 3, 2014 while lawfully upon the premises, plaintiff Georgina

Spence was caused to be injured solely and wholly due to the negligence and carelessness of
defendant Insomnia Cookies Inc.
66.

That solely and wholly by reason of the foregoing, plaintiff Georgina Spence was

injured.
67.

That said occurrence and the resulting injuries to plaintiff Georgina Spence were

caused solely and wholly by reason of the negligence and carelessness of defendant Insomnia
Cookies Inc. in the ownership, operation, management, maintenance, control, security and
supervision of the premises and the employees within the premises known as Insomnia Cookies
Inc.
68.

That as a result of the foregoing, plaintiff Georgina Spence was injured solely and

wholly as a result of the negligence, carelessness and recklessness of the defendants Insomnia
Cookies Inc. and Keith Moody and/or each of them, without any negligence on the part of the
plaintiff contributing thereto.
69.

That by reason of the foregoing, plaintiff Georgina Spence has been damaged in

an amount in excess of the jurisdictional limits of all lower Courts in which this action may
otherwise have been brought.
70.

The limitations on liability set forth in CPLR Section 1601 do not apply to this

71.

The limitations on liability set forth in CPLR Section 1601 do not apply to this

action.

action by reason of one or more of the exemptions set forth in CPLR Section 1602.

WHEREFORE, plaintiff Georgina Spence demands judgment against defendants Insomnia

Cookies Inc. and Keith Moody in the amount of ten million dollars ($10,000,000) on the first

cause of action; ten million dollars ($10,000,000) on the second cause of action; ten million dollars
($10,000,000) on the third cause of action; ten million dollars ($10,000,000) on the fourth cause of
action and ten million dollars ($10,000,000) on the fifth cause of action together with interest, costs
and the disbursements of this action.
Dated:

New York, NY
November 19, 2014
McCarthy | Kelly LLP
Attorneys for Plaintiff

By:_______________________
William P. Kelly
52 Duane Street
New York, NY 10007
(212) 732-5040
Defendants addresses:
Insomnia Cookies Inc.
1579 Second Avenue
New York, NY 10028

Keith Moody
2134 Amsterdam Avenue
New York, NY 10032

Attorneys Verification
STATE OF NEW YORK

)
) ss:
COUNTY OF NEW YORK )
William P. Kelly, being duly sworn, states that he is an attorney duly admitted to practice
in the State of New York and a member of the law firm of McCarthy | Kelly LLP, attorneys for
plaintiff in the within action; that the foregoing Verified Complaint is true to his own knowledge,
except as to those matters herein stated to be alleged upon information and belief, and as to those
matters he believes them to be true; that the grounds of his belief as to all matters not stated upon
his knowledge are from conversations with plaintiff and/or documents furnished to him by
plaintiff.
The undersigned further states that this verification is made by the undersigned and not by
plaintiff because plaintiff is incapacitated and/or not in the county where affirmant has his office.

_____________________________
William P. Kelly

Sworn to me this day

of November 19, 2014

____________________
Notary Public