Opinion
7507 Index 153561/16
10-30-2018
Fernando RICAURTE, Plaintiff–Respondent–Appellant, v. INWOOD BEER GARDEN & BISTRO INC., Defendant–Appellant–Respondent.
Boeggeman, Corde, Ondrovic & Hurley, P.C., White Plains (Jeremy D. Platek of counsel), for appellant-respondent. Eddy & Associates, PLLC, Elmhurst (Deborah D. Eddy, Westport, CT, of counsel), for respondent-appellant.
Boeggeman, Corde, Ondrovic & Hurley, P.C., White Plains (Jeremy D. Platek of counsel), for appellant-respondent.
Eddy & Associates, PLLC, Elmhurst (Deborah D. Eddy, Westport, CT, of counsel), for respondent-appellant.
Acosta, P.J., Friedman, Kapnick, Webber, Moulton, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered June 11, 2018, which, upon defendant's motion for summary judgment dismissing the complaint, denied the motion as to plaintiff's Dram Shop claim and granted the motion as to plaintiff's common law negligence claim, unanimously reversed, on the law, without costs, to grant the motion as to the Dram Shop Act claim and to deny the motion as to the common law negligence claim.
Defendant was entitled to summary judgment dismissing plaintiff's cause of action under the Dram Shop Act ( General Obligations Law § 11–101 ; see also Alcohol Beverage Control Law § 65). A witness testified that plaintiff's assailant did not appear visibly intoxicated at the time he was served two drinks by defendant. This evidence was sufficient to make out a prima facie showing that the assailant was not visibly intoxicated at the time he was served alcohol, since it is clear from the record that he was not served from that point in time until he attacked plaintiff (see Coffey v. Esparra, 88 A.D.3d 621, 622, 931 N.Y.S.2d 600 [1st Dept. 2011] ; compare Cohen v. Bread & Butter Entertainment LLC, 73 A.D.3d 600, 601, 905 N.Y.S.2d 4 [1st Dept. 2010] ). In opposition, plaintiff failed to raise a triable issue of fact, and, therefore, defendant has established its entitlement to judgment as a matter of law dismissing the Dram Shop Act cause of action (see Coffey, 88 A.D.3d at 622, 931 N.Y.S.2d 600 ).
The motion for summary judgment dismissing the common law negligence claim, however, should have been denied. While the first assault was sudden and unforseeable, and therefore not actionable, defendant failed to demonstrate as a matter of law that it took reasonable actions to protect plaintiff from the assailant on the second assault and that it was not foreseeable. It is true that the husband of defendant's owner averred that he was escorting the assailant, who appeared to have calmed down "somewhat," from the premises, when he suddenly lunged two or three feet to where plaintiff was standing, and struck him. However, another witness testified that immediately prior to assailant's attack on plaintiff, he did not see anyone accompanying or escorting the assailant while the assailant exited defendant's establishment. This raises issues of fact as to whether defendant took reasonable precautions to prevent the second assault (see generally Deinzer v. Middle Country Pub. Lib., 120 A.D.3d 1292, 1293, 992 N.Y.S.2d 557 [2d Dept. 2014] ["A possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties"] ).