Sclafani v Brother Jimmy's BBQ, Inc.

Sclafani v Brother Jimmy's BBQ, Inc. 2011 NY Slip Op 07184 Decided on October 13, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 13, 2011
Catterson, J.P., Richter, Manzanet-Daniels, Román, JJ.
5713 115551/08

[*1]Lauren Sclafani, Plaintiff-Respondent,

v

Brother Jimmy's BBQ, Inc., et al., Defendants-Respondents, Bacardi, USA, Inc., et al., Defendants-Appellants.



 
Hunton & Williams LLP, New York (Jeffrey W. Gutchess of
counsel), for appellants.
Kramer, Dillof, Livingston & Moore, New York (Matthew
Gaier of counsel), for Lauren Sclafani, respondent.
Gallo Vitucci & Klar, LLP, New York (Daniel P. Mevorach of
counsel), for Brother Jimmy's BBQ, Inc., Brother Jimmy's NYC
Restaurant Holdings, LLC, Brother Jimmy's Franchising, LLC,
Josh Lebowitz, Michael DaQuino and Kevin Bulla, respondents.

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered May 27, 2010, which, insofar as appealed from, denied the motion of the Bacardi defendants (Bacardi) pursuant to CPLR 3211(a)(7) to dismiss the complaint as against them, unanimously affirmed, with costs.

Plaintiff patron alleges that she was injured when, while at the bar at defendants-respondents' restaurant, the bartender, in a pyrotechnic display, poured Bacardi's high-alcohol content rum onto the surface of the bar and ignited it. At that point, the flame ignited into the bottle and the flaming contents shot out of the mouth of the bottle. As a result, plaintiff sustained severe burns.

The motion court properly concluded that under the circumstances plaintiff has viable claims for both negligence and strict liability based on defective design. Bacardi has submitted no evidence substantively contradicting the facts set forth in the complaint or in the affidavits of plaintiff's experts (see generally Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see also Yun Tung Chow v Reckitt & Colman, Inc., 17 NY3d 29, 33-34 [2010]). Although Bacardi included warning labels on the bottle of Bacardi 151 and installed a removable flame arrester, it did so while actively promoting the very pyrotechnic uses that caused plaintiff's injuries.

The court also properly declined to dismiss plaintiff's request for punitive damages. Contrary to Bacardi's contention, punitive damages have been "sanctioned under New York law in actions based on negligence and strict liability" (see Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196, 204 [1990] [internal citations omitted]). [*2]

We have considered Bacardi's remaining arguments, including the challenges to certain statements made by plaintiff's experts, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 13, 2011

CLERK