Carver v P.J. Carney's

Carver v P.J. Carney's 2013 NY Slip Op 00805 Decided on February 7, 2013 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 February 7, 2013
Mazzarelli, J.P., Acosta, Saxe, Renwick, Clark, JJ.
9216 103191/10

[*1]Christopher Carver, Plaintiff-Respondent,

v

P.J. Carney's, et al., Defendants-Appellants, "John Doe," etc., Defendant.




Nowell Amoroso Klein Bierman, P.A., New York (Alexander J.
Drago of counsel), for appellants.
Burns & Harris, New York (Blake G. Goldfarb of counsel), for
respondent.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered April 23, 2012, which, in this action for personal injuries under the Dram Shop Act (General Obligations Law § 11-101) and in common-law negligence, denied the motion of defendants-appellants (collectively tavern) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Summary judgment was properly denied in this action where plaintiff alleged that he was injured when he was struck in the face by a visibly intoxicated patron of the Tavern on the sidewalk outside the premises. The record presents triable issues as to whether there was "some reasonable or practical connection" between the sale of alcohol to a visibly intoxicated patron and the resulting injuries (Adams v Ziriakus, 231 AD2d 80, 88 [4th Dept 1997], affd 92 NY2d 396 [1998]). Although the tavern's bartender stated that the subject patron did not appear to be visibly intoxicated, plaintiff testified to the contrary, and two other witnesses submitted affidavits stating that prior to the assault the patron had been served alcohol by the tavern while visibly intoxicated inasmuch as he was unsteady, aggressive and boisterous (see General Obligations Law § 11-101[1]; Alcohol Beverage Control Law § 65[2]; McGovern v 4299 Katonah, 5 AD3d 239 [1st Dept 2004]). The record also raises issues as to whether appropriate security measures were taken after the tavern's bartender allegedly diffused an initial confrontation between the patron and plaintiff's group while inside the bar (see Wilder v Nickbert Inc., 254 AD2d 819 [4th Dept 1998]; see also Panzera v Johnny's II, 253 AD2d 864 [2d Dept 1998]).

Contrary to the tavern's contention, the assault, if intentional, did not serve to sever potential liability under either the Dram Shop Act (see Catania v 124 In-To-Go, Corp., 287 AD2d 476 [2d Dept 2001], lv dismissed 97 NY2d 699 [2002]), or
under a common-law negligence claim (see Wilder, 254 AD2d at 819; Panzera, 253 AD2d at 865). Furthermore, the fact that plaintiff, after the initial confrontation, later chose to walk over [*2]to where the patron and members of plaintiff's party were arguing outside the tavern's front door, did not negate, as a matter of law, the duty on the Tavern's part to keep the premises
reasonably safe for its customers.

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

ENTERED: FEBRUARY 7, 2013

CLERK