Benitez v Suncrest Tavern, Inc.

[*1] Benitez v Suncrest Tavern, Inc. 2009 NY Slip Op 50593(U) [23 Misc 3d 1105(A)] Decided on March 30, 2009 Supreme Court, Kings County Schneier, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 30, 2009
Supreme Court, Kings County

Julissa Benitez, Plaintiff,

against

Suncrest Tavern, Inc., MARIA BOSCO d/b/a SUNCREST TAVERN, JOSEPH CALENDRO d/b/a SUNCREST TAVERN, THE CRESENT CLUB INC., STEPHEN TROST, VERONICA VALENTINE, GARY WILKERSON, TED DELGADO and IGNACIA DELGADO, as administratrix of the Estate OF JEHOVA B. DELGADO., Defendants.



14477/07



ATTORNEYS FOR PLAINTIFF

JULISSA BENITEZ

KAHN GORDON TIMKO & RODRIQUES, P.C.

20 VESEY STREET, SUITE 300

NEW YORK, NEW YORK 10007

212-233-2040

ATTORNEYS FOR DEFENDANT

VERONICA VALENTINE

CONGDON, FLAHERTY, O'CALLAHAN, REID

DONLON, TRAVIS, FISHLINGER, ESQS.

333 EARLE OVINGTON BLVD. UNIONDALE, NEW YORK 11553

516-542-5900

ATTORNEYS FOR DEFENDANT

GARY WILKERSON

THOMAS BONA, P.C.

123 MAIN STREET

WHITE PLAINS, NEW YORK 10601

914-428-1428

ATTORNEYS FOR DEFENDANT

TED DELGADO AND IGNACIO DELGADO AS ADMISTRATRIX

OF THE ESTATE OF JEHOVA B. DELGADO

LAW OFFICES OF MOIRA A. DOHERTY

PARK 80 WEST, PLAZA II

SADDLE BROOK, N.J. 07663

201-368-8055

MARIA BOSCO d/b/a SUNCREST TAVERN INC

1043 LIBERTY AVENUE

BROOKLYN, NEW YORK 11208

347-231-5027

JOSEPH CALANDRO d/b/a SUNCREST TAVERN INC.

1043 LIBERTY AVENUE

BROOKLYN, NEW YORK 11208

347-231-5027

STEPHEN TROST (DEFENDANT PRO SE)

1043 LIBERTY AVENUE

BROOKLYN, NEW YORK 11208

347-231-5027

Martin Schneier, J.

In this action by plaintiff, Julissa Benitez, (Benitez) to recover damages for personal injuries defendant, Stephen Trost, (Trost) moves for summary judgment.

Background

In the early hours of February 13, 2005, Benitez attended a 20th birthday party for her friend, Shanay Branch (Branch). The party was held at Suncrest Tavern, a bar located at 1043 Liberty Avenue, Brooklyn, New York, (premises). Benitez, Branch and two other women were driven to Suncrest Tavern by Branch's father, defendant Gary Wilkerson (Wilkerson). Wilkerson remained at the party and attempted to drive Benitez, Branch and others home. On their way home, Wilkerson was involved in an accident with another car. The accident resulted in the deaths of the other driver and Wilkerson's daughter. Benitez alleges that she sustained injuries as a result of this automobile accident. Trost was the owner of the premises on the day of the accident and had leased part of these premises to the owners of the Suncrest Tavern.

Discussion

The complaint alleges causes of action against Trost for negligence and for violation of the "Dram Shop Act" (General Obligations Law §§

11-100, 11-101)

With respect to the negligence cause of action, the relevant portions of the amended complaint states: "46. On February 13, 2005, defendant, STEPHEN TROST, and through his officers, agents, representatives, servants and/or employees, knowingly furnished, sold, delivered, gave and/or assisted in the procurement of alcoholic beverages to defendant GARY WILKERSON.51. On February 13, 2005, defendant STEPHEN TROST, and through his officers, agents, representatives, servants and/or employees, continued to furnish, sell, deliver and/or give alcoholic beverages to the defendant, GARY WILKERSON, while he was visibly and obviously intoxicated.56. As a result of defendant STEPHEN TROST's negligence, carelessness and recklessnessin the ownership, occupancy, management, maintenance, operation, control of the aforesaid premises and by furnishing, selling, delivering alcoholic beverages, the defendant, GARY WILKERSON, was caused to be, become [*2]and remain in a visibly and obviously intoxicated condition and/or state.61. Defendant STEPHEN TROST, knowing that the defendant, GARY WILERSON, was visibly and obviously intoxicated, permitted and allowed him to leave, exit and/or depart from the aforesaid premises.66. As a result of the defendant STEPHEN TROST'S negligence the defendant GARY WILKERSON, was caused, permitted and allowed to operate and drive the aforesaid 1999 Ford bearing Maryland licence plate No.315M952 away from the premises 1043 Liberty Avenue, County of Kings, City and State of New York."

With respect to the cause of action for violating the Dram Shop Law, the relevant portions of the amended complaint states: "76. The aforesaid conduct of defendant STEPHEN TROST, and by his officers, agents, servants and/or employees was in violation of the General Obligations Law, Art. ** Title 1 Section 100, the "DRAM SHOP ACT',Alcoholic Beverage Control Law and other statutes, laws ordinances, rules and regulations pertaining thereto as a result of which plaintiff, JULISSA BENITEZ, sustained severe, serious and permanent personal injuries.77. The aforesaid occurrence and serious injuries sustained by plaintiff, JULISSA BENITEZ, were brought about and caused by the statutory violation and/or negligence of the defendants SUN CREST, MARIA BOSCO d/b/a SUN CREST, JOSEPH CALANDRO d/b/a SUN CREST, CRESCENT CLUB and STEPHEN TROST, in causing, permitting and allowing alcohol to be furnished, sold, delivered, served, given, gifted and consumed by defendant GARY WILERSON, while on the defendants' premises; in knowingly causing the intoxication and impairment of ability of defendant GARY WILKERSON; in continuing to furnish, deliver, sell and give alcoholic beverages to defendant GARY WILKERSON, although he was visibly and obviously intoxicated; in causing, permitting and allowing defendant GARY WILKERSON, to leave, exit and/or depart from the aforesaid premises and operated and/or drive a motion vehicle."

Summary judgment is a drastic remedy that should only be employed when there is no doubt as to the absence of any triable issues of a material fact (Kolivas v Kirchoff, 14 AD3d 493 [2nd Dept. 2005]). "Issue finding, rather than issue determination is the courts function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied." (Celardo v Bell, 222 AD2d

547 [2nd Dept. 1995]).

A defendant moving for summary judgment has the initial burden of coming forward with admissible evidence that establishes the absence of a material issue of fact and that the cause of action has no merit. (CPLR 3212[b]; GTF Marketing, Inc. V. Colonial Aluminum, Sales, Inc.,

66 NY2d 965, 968 [1985]). [*3]

Once the defendant has satisfied his burden the burden then shifts and the plaintiff in opposing the motion must now demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 560, [1980]). "Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliance upon surmise, conjecture, or speculation" (Morgan v. New York Telephone, 220 AD.2d 728, 729 [2d Dept 1995]).

Trost in his affidavits submitted in support of his motion states in pertinent part:

"Pro se Defendant Stephen Trost was never employed by Sunset Tavern Inc. And never had any managerial decision making power or financial interest. He served only in the capacity of the landlord..."

"I have never personally witnessed a single instance where alcoholic beverages were being sold to a minor"

"I am not aware of any illicit, illegal activities or disorderly conduct that took place upon the premises in the period of time where I owned the property".

Trost's affidavits are sufficient to establish his prima facie entitlement to summary judgment.

In opposition, the plaintiff argues that summary judgment should be denied because Trost new of, and benefitted from, the sale of alcohol on the premises to minors. There are, however, two flaws with plaintiff's argument. First, these allegations are not supported by any evidence in admissible form. Second, there is no allegation that a minor was responsible for the happening of the accident. Thus, even if these allegations are true, they are not a proximate cause of the accident. The plaintiff has, therefore, failed to raise any issue of fact in opposition to the motion.

Conclusion

Based on the foregoing, the motion by defendant Stephen Trost is granted and the complaint against defendant Stephen Trost is dismissed.

This constitutes the Decision and Order of the Court.

______________________

J.S.C.