Epstein v Eamonn's Bar & Night Club
Annotate this CaseDecided on March 26, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ.
2013-2310 RI C
Corey Epstein, Respondent,
against
Eamonn's Bar & Night Club, Appellant.
Appeals from an order of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), dated April 4, 2013, and a judgment of the same court entered May 10, 2013. The judgment, entered pursuant to a February 11, 2013 decision, after a nonjury trial, awarding plaintiff the principal sum of $900,000, and the April 4, 2013 order which, upon a motion by plaintiff, modified the decision to provide, among other things, that defendant was 80% at fault and the assailant 20% at fault, and denied defendant's cross motion to set aside the decision, awarded plaintiff the principal sum of $900,000.
ORDERED that the appeal from the order dated April 4, 2013 is dismissed, as the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]); and it is further,
ORDERED that the judgment is affirmed, without costs.
On the early morning of January 16, 2009, plaintiff was stabbed by a man inside a Manhattan bar owned by defendant. Plaintiff subsequently commenced this action, asserting that defendant had violated the Dram Shop Act (General Obligations Law § 11-101) by selling alcoholic beverages to the assailant, who was visibly intoxicated. Plaintiff further alleged that defendant had been negligent in failing to provide adequate security. After a nonjury trial, the Civil Court issued a decision dated February 11, 2013 awarding plaintiff the principal sum of $900,000. By order dated April 4, 2013, the Civil Court, among other things, modified the decision to provide that defendant was 80% at fault and the assailant 20% at fault, and denied defendant's cross motion to set aside the decision. A judgment was subsequently entered pursuant to the decision and order.
To establish a cause of action under New York's Dram Shop Act, a plaintiff is required to prove that the defendant sold alcohol to a person who was visibly intoxicated and that the sale of that alcohol bore some reasonable or practical connection to the resulting damages (see General Obligations Law § 11-101; Sullivan v Mulinos of Westchester, Inc., 73 AD3d 1018 [2010]; McArdle v 123 Jackpot, Inc., 51 AD3d 743, 746 [2008]; McNeill v Rugby Joe's, 298 AD2d 369, 370 [2002]; Adamy v Ziriakus, 231 AD2d 80, 88 [1997], affd 92 NY2d 396 [1998]). Consequently, in order to establish its entitlement to judgment as a matter of law dismissing the Dram Shop Act cause of action, defendant was required to establish either that it did not serve [*2]alcohol to the assailant while he was visibly intoxicated or that its sale of alcohol to him had no reasonable or practical connection to the assault.
Here, the factfinder found that defendant sold alcohol to the visibly intoxicated patron who assaulted plaintiff, and that the sale of alcohol contributed to this person's intoxication to an appreciable degree. There was uncontradicted testimony that the assailant continued to drink throughout the night, that he was visibly intoxicated and became increasingly aggressive, and that he ultimately stabbed plaintiff. Under these circumstances, "no valid line of reasoning and permissible inferences" could have led to a conclusion other than that defendant served alcohol to the assailant while he was visibly intoxicated and that there was a reasonable connection between the assailant's intoxication and the assault (Gretreu v Plazall, Inc., 261 AD2d 574 [1999]; see Catania v 124 In-To-Go Corp., 287 AD2d 476 [2001]; see also Chipetine v McEvoy, 238 AD2d 536 [1997]). In addition, landowners have a duty to control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control (see Ash v Fern, 295 AD2d 869 [2002]). Here, the evidence established that the fight that led to plaintiff's injury was an evolving one. Defendant did not present evidence that the assault happened in such an abrupt and unforeseeable manner that its employees had no opportunity to prevent it. Under these circumstances, a reasonable person could find that defendant's failure to have adequate security to be made aware of and control any criminal conduct by its intoxicated patron constituted negligence (see Boyea v Aubin, 65 AD3d 736 [2009]).
Contrary to defendant's contention, a negligent tortfeasor, such as defendant, may be apportioned a greater percentage of fault than the perpetrator, an intentional tortfeasor (see Nash v Port Auth. Of NY & NJ, 51 AD3d 337 [2008], revd sub nom. on other grounds Matter of World Trade Ctr. Bombing Litig.,17 NY3d 428 [2011]; see also Cabrera v Hirth, 8 AD3d 196 [2004]; Siler v 146 Montague Assoc., 228 AD2d 33 [1997]). Defendant further contends that, in any event, the trial court's apportionment of liability, finding it 80% at fault and the assailant 20% at fault, was against the weight of the evidence. Inasmuch as defendant continually served alcohol to the intoxicated patron and given the fact that approximately 10 to 15 minutes elapsed between the time the fighting commenced and the time plaintiff was stabbed, without any security intervention on the part of defendant, the Civil Court could have fairly determined that defendant's conduct was the greater cause of plaintiff's injuries (see Ortiz v New York City Housing Authority, 22 F Supp 2d 15, 33 [1998], affd 198 F3d 234 [1999]; see also Shachnow v Myers, 229 AD2d 432 [1996]). Thus, the apportionment of fault was not against the weight of the evidence.
Defendant's remaining contentions are without merit.
Accordingly, the judgment is affirmed.
Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: March 26, 2015
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