BAR FIGHT CASE DISMISSED ON SUMMARY JUDGMENT: NO "NEGLIGENCE" AND NO CONNECTION BETWEEN POSSIBLE "DRAM SHOP" VIOLATION AND INJURIES

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Kiely v. Benini

Date: Nov. 9, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury attorney)

Comment: Plaintiffs, a brother and sister, were injured in a bar fight. To get to the bar=s insurance they frame their claims as a result of "negligence." They also bring a "Dram Shop" claim. The Dram Shop law holds a seller of alcohol liable for an "illegal sale" -- most commonly this law is broken by a sale usually to someone already drunk or to an underage minor.

Defense summary judgment lets the bar out of the case because: (1) the assaults were not foreseeable, so that the bar was not negligent in preventing them and, (2) plaintiffs showed no connection between allegedly illegal alcohol sales and the assaults.

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RELATED POSTS:

MOTION TO DISMISS PUNITIVE DAMAGES DENIED IN DRUNK DRIVING CAR ACCIDENT (Posted By Brooklyn injury attorney Gary E. Rosenberg on Oct 13, 2011)

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In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), entered June 8, 2010, as granted those branches of the motion of the defendant Grey Lake, Inc., doing business as Metro 53, which were for summary judgment dismissing the causes of action to recover damages for personal injuries premised on common‑law negligence insofar as asserted against it and to recover damages for personal injuries to the plaintiff Kristy Kiely premised on a violation of the General Obligations Law Sec. 11-101.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs, brother and sister Gary Kiely, Jr., and Kristy Kiely, commenced this action to recover damages for personal injuries they allegedly sustained during various altercations that took place at the premises owned by the defendant Grey Lake, Inc., doing business as Metro 53 (hereinafter Metro 53). Metro 53 moved for summary judgment dismissing the complaint insofar as asserted against it. In the order appealed from, the Supreme Court, among other things, granted those branches of Metro 53's motion which were for summary judgment dismissing the causes of action to recover damages for personal injuries premised on common‑law negligence insofar as asserted against it and to recover damages for personal injuries to Kristy premised on a violation of the General Obligations Law Sec. 11-101. The plaintiffs appeal. We affirm the order insofar as appealed from.

The Supreme Court properly granted that branch of Metro 53's motion which was for summary judgment dismissing the causes of action to recover damages for personal injuries allegedly sustained by both of the plaintiffs premised on common‑law negligence insofar as asserted against it. _Although a property owner must act in a reasonable manner to prevent harm to those on its premises, an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control. Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults_ (Giambruno v. Crazy Donkey Bar & Grill, 65 AD3d 1190, 1192 [internal citations omitted]; see D'Amico v. Christie, 71 N.Y.2d 76, 85; Millan v. AMF Bowling Ctrs., Inc., 38 AD3d 860, 861; Petras v. Saci, Inc., 18 AD3d 848; Cutrone v. Monarch Holding Corp., 299 A.D.2d 388, 389). Metro 53 made a prima facie showing of its entitlement to judgment as a matter of law as to the alleged assaults on the plaintiffs occurring inside Metro 53. The plaintiffs' deposition testimony revealed that these alleged assaults were sudden and unexpected events that Metro 53 could not have reasonably anticipated or prevented. Thus, Metro 53 cannot be subject to common‑law liability for injuries sustained by the plaintiffs while they were inside Metro 53's premises (see Katekis v. Naut, Inc., 60 AD3d 817, 818; Petras v. Saci, Inc., 18 AD3d at 848; see also Millan v. AMF Bowling Ctrs., Inc., 38 AD3d at 861). Moreover, based on Gary's deposition testimony that he did not sustain any new injuries as a result of an alleged assault occurring outside Metro 53, Metro 53 made a prima facie showing of entitlement to judgment as a matter of law in connection with the alleged assault on Gary occurring outside Metro 53 (see generally Solomon v. City of New York, 66 N.Y.2d 1026, 1027). In opposition to Metro 53's prima facie showing, the plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557).

The Supreme Court also properly granted that branch of Metro 53's motion which was for summary judgment dismissing the cause of action to recover damages for personal injuries to Kristy premised on a violation of the General Obligations Law Sec. 11-101. The plaintiffs failed to raise a triable issue of fact in opposition to Metro 53's prima facie showing that no reasonable or practical connection existed between the allegedly illegal sale of alcohol and Kristy's injuries (see Kaufman v. Quickway, Inc., 14 NY3d 907, 909; Dugan v. Olson, 74 AD3d 1131, 1133).

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