Kluse v Lyon

[*1] Kluse v Lyon 2006 NY Slip Op 52510(U) [14 Misc 3d 1212(A)] Decided on October 11, 2006 Supreme Court, Suffolk County Molia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2006
Supreme Court, Suffolk County

James Kluse, Plaintiff,

against

Michael S. Lyon and Andy Laux, Defendants.



10836/2006



PLAINTIFF'S ATTORNEY:

James J. O'Rourke & Associates, PLLC

235 Brooksite Drive

Hauppguae, New York 11788

PRO SE:

Michael S. Lyon

40 Peeble Lane

Levittown, New York 11756

ATTORNEYS FOR ANDY LAUX:

Congdon, Flaherty, O'Callaghan, Reid,

Donlon, Travis & Fishlinger, Esqs.

333 Earle Ovington Boulevard, Suite 502

Uniondale, New York 11553-3625

Denise F. Molia, J.

Upon the following papers numbered 1 to 2 read on this motion to dismiss the complaint; Notice of Motion/Order to Show Cause and supporting papers 1 - 3 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 4 - 6 ; Replying Affidavits and supporting papers 7 - 8 ; Other; and upon due deliberation; it is,

ORDERED that the motion (001) by defendant, Andy Laux, for an order dismissing the action pursuant to CPLR 3211(a)(7) and (c) is granted; and it is further

ORDERED that the remaining parties are directed to appear at a preliminary conference pursuant to 22NYCRR §202.8(f) on October 24, 2006 at the Supreme Court Annex, DCM Part, Room 203A, 235 Griffing Avenue, Riverhead, New York at 10:00 a.m.; and it is further

ORDERED that plaintiff's counsel shall serve a copy of this Order with Notice of Entry upon counsel for the defendant pursuant to CPLR 2103(b)(2) or (3) within twenty (20) days of the date hereof and thereafter file the affidavit of service with the Clerk of the Court.

In this tort action, plaintiff alleges that he sustained personal injuries while a guest at the home of defendant, Andy Laux, in the premises located at 146 Maple Avenue, Medford, New York, on or about June 1, 2004. Plaintiff alleges that defendant Laux served alcoholic beverages to defendant, Michael S. Lyon, who became intoxicated and struck plaintiff in the face, causing injury. Plaintiff alleges assault in the first cause of action as against defendant Lyon and alleges in the second cause of action that defendant Laux negligently served alcohol to defendant Lyon. Defendant Laux moves to dismiss the action.

In support of the motion, defendant Laux submits, inter alia, the pleadings and his personal affidavit wherein defendant avers that he did not sell alcoholic beverages to anyone at his home. He also states that plaintiff brought the alcohol which was consumed by the guests, all of whom were adults, that evening. At some point during the evening, when he went upstairs for a short time he observed all the guests socializing with each other. When he returned downstairs and observed defendant Lyon punching the plaintiff in the head. Defendant contends that plaintiff's allegations related to serving alcohol to defendant Lyon are not applicable to General Obligations Law §11-101, also known as the Dram Shop Act, inasmuch as no alcohol was served to or procured for a minor in his home.

In opposition, plaintiff submits his personal affidavit wherein he avers that he was struck by defendant Lyon without provocation. He also states that defendant Laux's service of alcoholic beverages to defendant Lyon created a dangerous condition which led Lyon to assault plaintiff. Plaintiff concedes that the Dram Shop Act is not applicable and that Laux did not participate in the assault, but that defendant Laux is liable for a prima facie tort.

Pursuant to CPLR 3211(a)(7), on such a motion, the Court is limited to examining the pleading to determine whether it states a cause of action (Guggenheimer v Ginzburg, 43 NY2d 268, 401 NYS2d 182 [1977]). In examining the sufficiency of the pleading, the Court must accept the facts alleged therein as true and interpret them in the light most favorable to the plaintiff (Board of Education v State Education Dep't, 116 AD2d 939, 498 NYS2d 516 [1986], later proc 135 AD2d 903 [1987]). "Moreover, a court may freely consider evidentiary material submitted on the motion to remedy any defects in the complaint" (Vorel v NBA Props., 285 [*2]AD2d 641, 728 NYS2d 397 [2001]). Homeowners have a duty to act in a reasonable manner to prevent harm to those on their property, which includes the duty to control the conduct of third persons on their premises when the homeowners have the opportunity to control such persons and are reasonably aware of the need for such control (Chalu v Hariraj, 304 AD2d 515, 758 NYS2d 132 [2003]). The key to the prima facie tort is the infliction of intentional harm, resulting in damage, without excuse or justification, by an act or series of acts which would otherwise be lawful and is an act which does not fall within the categories of the traditional torts (see, ATI, Inc. v Ruder & Finn, 42 NY2d 454, 398 NYS2d 864 [1977]).

Here, plaintiff fails to state a cause of action sounding in negligence as against defendant Laux. The above circumstances are insufficient to make defendant Laux aware of a need to control defendant Lyon and no allegation was made regarding defendant Laux's duty or opportunity to intervene to protect plaintiff (see Scalice v King Kullen, 274 AD2d 426, 710 NYS2d 632 [2000], lv denied 95 NY2d 767). Therefore, defendant Laux had no duty to plaintiff and was not negligent as a matter of law. In addition, the only intentional and harmful acts alleged are those which, if proven, will establish the traditional tort of assault by

defendant Lyon, not by defendant Laux. A prima facie tort may not be used as an alternative for a traditional tort (cf. Belsky v Lowenthal, 62 AD2d 319, 405 NYS2d 62 [1978], affd 47 NY2d 820 [1979]). Consequently, plaintiff's claim that the second the cause of action sounds in prima facie tort is dismissed.

Accordingly, the motion to dismiss the action as against defendant Laux is granted.

_________________________________Hon. Denise F. Molia, J.S.C.