Cline v Harold W. Townsend Post 1757
Annotate this Case
Download PDF
Cline v Harold W. Townsend Post 1757 2017 NY Slip Op 30146(U) January 23, 2017 Supreme Court, Wayne County Docket Number: 76532 Judge: Daniel G. Barrett Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] At a Term of the Supreme Court he d in and for the County o Wayne at the Hall of J stice in the Town of Lyons New York on the 19th day 9f October, 2016. PRESENT: Honorable Daniel G. Barrett Acting Supreme Court Justice STATE OF NEW YORK SUPREME COURT COUNTY OF WAYNE BRIAN CLINE AND KAREN CLINE, Plaintiffs ECISION In ex No. 76532 -vsHAROLD W. TOWNSEND POST 1757 AND ALLEN WALTERS, JR. A/K/A ALLEN R. WALTERS, Defendants The Defendant, Harold W. Townsend Post 1757 (hereinafter referred to as Defendant) has filed a motion for Summary Judgment seeking dismiss I of Plaintiffs' claims and all cross claims against them in their entirety. BACKGROUND The Plaintiff, Brian Cline, and Defendant, Allen Walters, Jr. a/kl~ Allen R. Walters (hereinafter referred to as Co-Defendant) along with about ten lther men planned to spend a weekend at Sacketts Harbor participating in an ice fishing de by scheduled for Saturday, February 9, 2013. These dozen men stayed at a residence ow ed by Allen Walter, Sr., father of the Co-Defendant. -1- [* 2] This group of men arrived at the residence in Sacketts Harbor on Thursday. On Friday, February 8th, the group went to a bar in Sacketts Harbor, Defen t, about 7:00 P.M.. After 10:00 P.M. Plaintiff and Co-Defendant were involved in a physical encounter outside the Defendant Legion. Plaintiff sustained injuries an commenced this action seeking monetary compensation for the injuries sustained. FIRST CAUSE OF ACTION The first cause of action alleges that the Defendant was negligen in pennitting an accumulation of water, snow and ice on the exterior stairs. The submis ions presented in this application do not support a basis for this cause of action. Therefore, the first cause of action is dismissed against the Defendant. SECOND CAUSE OF ACTION The second cause of action states a claim for relief under the Dr Shop Act. General Obligations Law § 11- 101( 1), commonly known as the Dram S party who "unlawfully" sells alcohol to another person liable for injurie caused by reason of that person's intoxication. Under Alcohol Beverage Control Law §6 (2), it is unlawful to furnish an alcoholic beverage to any "visibly intoxicated person." In order to prevail on this cause of action, Plaintiff must show Co-Defendant was visibly i toxicated at the time he was served alcoholic beverages by the Defendant. The Court h s been presented with transcripts and Affidavits of the following people who were in the efendant's bar. Plaintiff Brian Cline, Defendant - Allen Walter, Jr., Colleen Allen (emp' oyee of Defendant), Jeff Hogan, Tom Sombathy, Braad Dolan, Ryan Binion (o board of the Defendant), Sara Brown (employee of Defendant), Mike alters, Allen Walters, Sr., Kristy May, Mark Dolan, Steve DeBurk, Peter Bernhard d Cliff Walters. This submissions are not in agreement as to the manner in which Co-Defendant comported himself during the course of the evening. -2- [* 3] Plaintiffs submission indicates that the Co-Defendant had cons ed ten (10) to seventeen (17) drinks of alcohol before they went to the Defendant's es ablishment. The drinks consisted of whiskey and coke and vodka and soda. Plaintiff sta es that he told Co-Defendant he was "shit faced" and needed to slow down. Plaintifft stifled Co- 1 Defendant was obnoxious, slurring his speech, and wobbly when he wa ked. Plaintiff opined that the Co-Defendant was visibly intoxicated when he arrived the Defendant' s bar. The Plaintiff testified he observed the Co-Defendant being served t least three times. He saw the Co-Defendant make a crude gesture to encourage or I sex and the Co-Defendant grabbed Plaintiffs posterior. Tom Sombathy testified Co-Defendant had four (4) or five (5) inks including a shot and one-half of 150 proof moonshine, a bloody mary, a seven and even and a beer before noon. The Co-Defendant smoked marihuana around 6:30 P.M. efore leaving for the Defendant's bar. He saw Co-Defendant consume three (3) or four (4) bottles of beer at the Defendant's bar. Josh Hogan saw Co-Defendant smoke marihuana before arrivin at the bar. He also testified Co-Defendant screamed an invitation for oral sex at the D fondant's bar on Friday night. Co-Defendant testified he consumed three (3) to five (5) beers fr m 4:00 P.M. until he went to the bar that evening. He testified he had four (4) beers at the Defendant's bar. Colleen Allen, an employee of Defendant, testified she served h. n four (4) beers. Many of the other submissions present the Co-Defendant in am nner unrecognizable from the previous descriptions of his behaviior on thee ening in question. Their descriptions present the Co-Defendant as not being visibly intoxi ated. -3- [* 4] While the record contains evidence that the Co-Defendant was n t intoxicated at the time in question, the record also contains evidence from which a tri r of fact could conclude otherwise. This being the case, a motion dismissing the Dr Shop cause of action is denied (see Rey v Barnhart, 117 A.D. 2d 874 (3rd Dep't 1986) . THIRD CAUSE OF ACTION The Plaintiff alleges that the Plaintiff injured due to the failure o the Defendant's negligence and failing to provide adequate security for his safety. The Plaintiff described an encounter between a 6'6" marine and e Co-Defendant. His version is that the Co-Defendant started a fight with the much large marine and the Co-Defendant had to be pulled off by others. Another version presente in these papers is that there was no fight at all. The Co-Defendant was simply talking to e marine. As with the prior cause of action, a question of fact exists as to what actual y occurred between the two individuals. If Plaintiff is believed that the Co-Defen aggressor in starting a fight with the marine then perhaps the Defendan should have taken some action to prevent any further bad behavior by the Co-Defen ant. Later in the evening, around 10 P.M., Colleen Allen, employed the Defendant to tend bar, testified that the second commander and member of the Bo rd of Directors of the Defendant, Ryan Binion, told her that Plaintiff and Co-Defendant w re arguing and they were acting like it was getting serious. She stopped serving Co-Dj fendant drinks and asked Plaintiff and Co-Defendant to leave the premises. Ms. AlleJ also testified that Mr. Binion had previously told them to leave the premises. Both Plaintlff and CoDefendant testified they were not told to leave the premises. The Plain~ff testified he asked the Co-Defendant to go outside for a cigarette. So, a question of . act is presented whether the Defendant took action at all. Based upon the foregoing discrepancy in testimony, the motion t dismiss the third cause of action is denied. -4- [* 5] Based on the foregoing the first cause of action is dismissed an the second and third causes of action are not dismissed against the Defendant. This constitutes the Decision of the Court. Counsel for Defendant to prepare an Order consistent with this Decision. Dated: January 23, 2017 Lyons, New York Court Justice -5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
