Folan v Bonsignore

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Folan v Bonsignore 2017 NY Slip Op 33311(U) December 19, 2017 Supreme Court, New York County Docket Number: 116645/09 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SU REME COURT OF THE STATE OF NEW YORK- NEW YORK COUNTY DEBRA A. JAMES PART 59 Justice Index No.: JOSHUA FOLAN, Plaintiff, -v- 116645/09 Motion Date: _ _ _ __ Motion Seq. No.:_...,.07_ _ TOMMY ONSIGNORE, BAR XII, and FELTRIM RESTAU T CORP. d/b/a BAR XII, Defendants. Motion Cal. No.: _ _ __ ·ng papers, numbered 1 to 4 were read on this motion for summary Judgment The foll Notice o Motion/Order to Show cause -Affidavits -Exhibits f \ L_ Answeri g Affidavits - Exhibits Replyin Affidavits - Exhibits · a Yes Cross E PAPER§ NUMBERED 1 2 3 aM'I .___ _4_____ II No U on the foregoing papers, it is bitZ\ "'"· ~Qffl01i COUNftaufll( ...-=ordered t!M't" t-we·moUon shall lh.,. .... be C -defendants Bar XII and Feltrim Restaurant Corp. move for summar them. judgment dismissing the complaint and cross-claim against Co-defendant Tommy Bonsignore and plaintiff Joshua Folan oppose the motion. Tis action arises out of an altercation that took place at movant' b~r on September 9, 2009, as a result of which plaintiff allege that he was injured after having been struck by co- C FINAL DISPOSmON Check If appropriate: C DO NOT POST Check One: II NON-FINAL DISPOSmON C REFERENCE Cl SETTLE/SUBMIT ORDER/JUDG. [* 2] defend nt Bonsignore in part due to the negligence of the movants in fai ing to provide adequate security on the premises. M vants argue that they are entitled to summary judgment becaus the alleged actions of co-defendant Bonsignore in assaul ing the plaintiff were sudden and unforeseeable and re a claim of negligent provision of security cannot be demons Zamore v Bar None Holding Co •• LLC, 73 AD3d 601 (1 st De t 2010); Lewis y Jemanda New York Corp., 277 AD2d 134 (1st Dept 2 00) ("Inasmuch as the incident was attributable to the sudden, unexpected and unforeseeable act of plaintiff's assail nt, its prevention was beyond any duty defendant may have had as a landowner to its .patrons"). H ever, in response, Bonsignore argues that the movants are not en itled to summary disposition because there is evidence the time of the incident the plaintiff was employed on the pr ises by the movants and therefore there is an issue of to whether movants acquired knowledge which imposed upon them a egal duty to act. T testimony of non-party Sean Sugrue, plaintiff's co- worker ending bar on the night of the altercation, was that plainti f was a "staff member" of the defendant bar and that f worked as a bartender that evening up to one hour prior to the 'ncident. Sugrue also testified that although he was unaware if plaintiff drank from the bar after finishing his -2- [* 3] shift, it was his recollection that there was no prohibition against plaintiff doing so and that defendants' employees were permit ed to remain on the premises following their shifts. B nsignore also cites the testimony of non-party Kristina Engen, his friend, that plaintiff, while working as a bartender, struck up a conversation with her and sometime later went outside of the bar and took the clip out of her hair, which allegedly precip tated the altercation that caused plaintiff's injuries. Te movants counter that none of the facts cited by Bonsig ore are sufficient to raise any issue of fact tending to establ sh that they have any liability upon his cross-claims that they n gligently failed to provide security. there Movants argue that re no facts in the record that would demonstrate that they were a are that plaintiff took Engen's hair clip, let alone that such a tion on the part of their bartender would have precip tated Bonsignore's reaction, and that therefore they are not li ble as a matter of law. Te court agrees with movants. There are no issues of fact that m vants should have foreseen that plaintiff's action would lead t the incident. Thus, they are not liable, as a matter of law, fr the assault by their patron, defendant Bonsignore. Te court agrees with Bonsignore to the extent that contra y to movants' assertions, Bonsignore and plaintiff's theory of liability is not based upon the plaintiff's employment -3- [* 4] status and movants' concomitant respondeat superior xespon!ibility but on whether given that status at the time of the in ident the movants acquired knowledge making the incident forese able and therefore creating a duty from the movants to the other However, nothing about the action of plaintiff in removi g the clip from Engen's haii makes foreseeable that her friend defendant Bonsignore reaction would be to strike plaint'ff. aware In summary, even assuming arguendo that movants were f plaintiff's inappropriate behavior toward Engen, movants independently negligent based on their failure to provide e security because of such imputed awareness of the behavi r of plaintiff, their part-time bartender, as the tion itself was nonetheless sudden, unexpected and As a matter of fact, the evidence that plaintiff the clip from Engen's hair, without her permission, is not ev'dence of an act predictably provocative of a physically reaction from a third person. In fact, plaintiff himself testif'ed that he had no warning of any kind of impending assault upon by defendant Bonsignore. ither Bonsignore nor plaintiff comes forward with any that movants' employees took some affirmative action to halt t duty t 2004). altercation between the parties, thus assuming a legal. ~ Lee v Chelsea Piers, 11 AD3d 257, (l•t Dept. Nor is there any evidence of prior assaults by third -4- [* 5] partie taking place iriside the bar, let alone past instances of inappr priate behavior on the part of plaintiff, on or off duty ~ Zamora v Bar None Holding Co, LLC, 73 AD3d 601 citing Lewis y Jemanda NY Corp, 277 AD2d 134 (1 st Dept there is no evidence that any employees or other agents makes took part in the assault upon plaintiff, which .q.i,:545;w.i.1=.:.!,!d,,.!L..ll~~"5...Jl:!.II.W~~, ·17 Misc3d 1103 (A) (Sup Ct, NY Co 2007) entirely distinguishable on its facts. A cordingly, it is O CEREO that the motion for summary judgment of defendants Bar XI and Feltrim Restaurant Corp d/b/a Bar XII is granted, and plaint and cross claims are dismissed in their entirety as such defendants, with costs and disbursements as taxed by the Cl rk upon submission of an appropriate bill of costs, and the Cl rk is directed to enter judgment accordingly in favor of such d fendants; and it is further DERED that the action is severed and continued against the remain'ng ~efendant; and it is further DERED that the caption be amended to reflect the dismissal and th tall future papers filed with the court bear the amended captio; and it is further O DERED that counsel for the moving parties shall serve a· copy o this order with notice of entry upon the County Clerk -5- [* 6] (Room 418) and the Clerk of the Trial Support Office (Room 158), who ar directed to mar·k the court's records to reflect the change in the caption herein. Tis is the decision and order of the court. ENTER: J.S.C. DEBRA A. JAMl!I Fl LED DEC 21 2D1l COUN1YCLERK'80fflQl:=NEWYORI(. ~ -6-.

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