Belove v Chirichella

[*1] Belove v Chirichella 2006 NY Slip Op 51326(U) [12 Misc 3d 1180(A)] Decided on May 1, 2006 Supreme Court, Suffolk County Loughlin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 1, 2006
Supreme Court, Suffolk County

Jeannie Belove, as Administratrix of the Estate of CHARLES J. McAULIFFE, and JEANNIE BELOVE, individually, Plaintiff,

against

Karin A. Chirichella and TGI FRIDAY'S, INC., a/k/a TGI FRIDAYS, INC., d/b/a TGI FRIDAYS, Defendants.



05-02607



Smyth Nora, LLP

Attorney for Plaintiff

143 Main Road

Huntington, NY 11743

Desena & Sweeney, LLP

Attorneys for Defendant Cirichella

1383 Veterans Memorial Highway,suite 32

Hauppauge, NY 11788

Cruser & Mitchell, LLP

Attorneys for Defendants TGI Friday's, Inc.,

225 Old Country Road Melville, NY 11747

Daniel J. Loughlin, J.

ORDERED, that the motions by the plaintiff to compel discovery and for a subpoena duces tecum and the cross-motions by the defendant TGI Friday's for a protective order and to quash the subpoena are determined as follows.

The plaintiff's decedent was struck and killed by a motor vehicle driven by the defendant Karen Chirichella. Prior to the accident, Chirichella had allegedly been drinking at the defendant TGI Friday's (hereinafter TGIF). The plaintiff commenced this action for wrongful death and asserts, inter alia, a cause of action against TGIF under the Dram Shop Act (see General Obligations Law § 11-101[1]). The plaintiff moves to compel TGIF to provide a further response to her combined demands and TGIF cross-moves for a protective order.

The plaintiff's combined demands contained over 80 requests including demands for corporate balance sheets, profit and loss statements, a business plan, operating manual and copies of all broadcast and print advertising in the New York area. The demands also sought copies of all time records and job descriptions for every employee working on the night in question as well as training manuals, training records, samples of all glassware used to serve wine, beer and hard liquor, bottles of wine, and any device, such as a pouring spout, used to serve alcohol. TGIF objected to most of the demands but did serve a response which included numerous documents and asserted that it was not in possession of other material such as surveillance videos or accident reports as the accident did not occur on its premises. Under the circumstances, TGIF adequately responded to the plaintiff's demands as the remaining demands were overbroad, burdensome, lacked specificity or sought irrelevant information (see Gonzalez v International Bus. Machines, 236 AD2d 363 [2d Dept 1997]; see also Bell v Cobble Hill Health Center, 22 AD3d 620 [2d Dept 2005]; Astudillo v St. Francis-Beacon Extended Care Facility, 12 AD3d 469 [2d Dept 2004]; Brandes v North Shore Univ. Hospital, 1 AD3d 550 [2d Dept 2003]; Latture v Smith, 304 AD2d 534 [2d Dept 2003]). Accordingly, the motion to compel is denied and the cross-motion for a protective order is granted. The branch of the cross-motion deeming the plaintiff to have waived the deposition of TGIF is denied.

The plaintiff also moves, pursuant to CPLR 2307, for a subpoena duces tecum to be served on the nonparty New York State Liquor Authority seeking any violations regarding the TGIF restaurant in question including any complaints filed as well as any reports of serving intoxicated patrons and reports of patrons arrested for driving while intoxicated after leaving TGIF. The plaintiff failed to demonstrate special circumstances warranting disclosure from a [*2]nonparty and the proposed subpoena was overbroad (see Butt v New York Medical College, 7 AD3d 744 [2d Dept 2004]; Matter of Ehmer, 272 AD2d 540 [2d Dept 2000]; Tsachalis v City of Mount Vernon, 262 AD2d 399 [2d Dept 1999]). In addition, the plaintiff has failed to demonstrate the relevance of the requested documents. To sustain a claim under the Dram Shop Act, a plaintiff must establish that the defendant unlawfully sold alcohol to a visibly intoxicated person (see Roy v Volonino, 262 AD2d 546 [2d Dept 1999]). The general rule is that evidence of prior similar acts is inadmissible to prove that a party perpetrated the same act on a later, unrelated occasion (see Coopersmith v Gold, 89 NY2d 957; Matter of Brandon, 55 NY2d 206). Therefore, the plaintiff has failed to demonstrate the relevance of prior incidents or complaints against TGIF (see McCarthy v Klein, 238 AD2d 552 [2d Dept 1997]). Accordingly, the motion for a subpoena duces tecum is denied. The cross-motion to quash is denied as unnecessary since the proposed subpoena was not signed.



Dated: May 1, 2006

DANIEL J. LOUGHLIN, J.S.C.