Sirois v Ferrara

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[*1] Sirois v Ferrara 2017 NY Slip Op 51550(U) Decided on November 13, 2017 Supreme Court, Richmond County Marin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2017
Supreme Court, Richmond County

Ronald Sirois, SR., RONALD SIROIS, JR., and JOSEPH SIROIS, Plaintiffs,

against

Vincent Ferrara, ORIENTAL PLAZA CHINESE & JAPANESE RESTAURANT, Defendants.



RONALD GIORDANO, Plaintiff,

against

THE O.P. TRADING, INC., and VINCENT FERRARA, Defendants.



100957/13



Attorney for plaintiffs Ronald Sirois, Sr., Ronald Sirois, Jr., and Joseph Sirois

Law Offices of Frank J. Dito, Jr.

By: Frank J. Dito

Law Offices of Peter Sweeney

By: Peter Sweeney

Attorneys for plaintiff Ronald Giordano

Kushner Law Group, PLLC

By: Michael P. Kushner

Attorneys for defendant Vincent Ferrara

Connors & Connors, P.C.

By: John P. Connors, Jr. and Tara P. Mandelbaum

Attorneys for defendant Oriental Plaza and The O.P. Trading, Inc.

Law Offices of James J. Toomey

By: Robert Varga
Alan C. Marin, J.

Plaintiffs move here to set aside the jury's verdict for defendants on liability, asking this Court to: 1) direct a verdict in favor of plaintiffs Ronald Sirois, Senior and Ronald Giordano [FN1] ; or



2) order a new trial on liability for all four plaintiffs in this matter, which arose from a dispute between patrons at the Oriental Plaza Chinese & Japanese Restaurant on May 26, 2012. For our purposes, the restaurant, which is located at 1845 Richmond Avenue in Staten Island, is the same entity as The O.P. Trading, Inc., a defendant in the second-captioned case.

The Oriental Plaza has two floors and a basement. The first floor is the restaurant that is open to the public; the upper and lower floors serve as banquet rooms. The second floor was the setting of a first communion party for the daughter of Jenna Pesce, then the partner of plaintiff Joseph Sirois, who had organized the party. More than 100 adults and children attended, including the other three plaintiffs: Joseph Sirois's father and brother (Ronald, Sr. and Jr.), as well as a friend, Ronald Giordano.

Two flights down, about 60 people were marking another first communion - - for the daughter of Jeanine and Carlo Monroy, who were friends of defendant Vincent Ferrara and his wife, Kerry. The Ferraras had brought their three-year old daughter.

Mr. Ferrara twice walked upstairs to the Sirois' party to look for and retrieve his three-year old, who, attracted by the music, had wandered up. Words were exchanged on at least one of these occasions. Ferrara, upset that this had happened in front of his daughter, had "five shots" over a fairly short period - - drinks that he testified were given to him by Mr. Monroy and others from their group. At some point, Joseph Sirois threw a chair in anger.

Ferrara went back upstairs again, this time with a few friends, including Monroy, and more words were exchanged. This commotion led to the upstairs communion party breaking up; Mr. Ferrara and his family had also begun to leave.

The above is undisputed in its essential elements, but thereafter the narrative diverges. What follows is from Vincent Ferrara's testimony. Vincent, his wife and daughter walked to their car, with Ms. Ferrara getting behind the wheel. A half a dozen men surrounded their Lincoln MKZ; Ferrara was punched, and the hood and windshield were banged on. Kerry Ferrara took their daughter and went back into the restaurant.

Ferrara got out of the passenger side and sat behind the wheel. More banging, a fist through the open window and threats to kill him. Defendant tried to drive out the back of the



restaurant, but there was no exit.[FN2] Ferrara then drove toward the front and saw that his friend Monroy's van was surrounded. Intending to exit onto Richmond Avenue, his path was

obstructed - - Ferrara testified that one man jumped onto the hood of his car, and that he had no option but to keep going even though that resulted in his vehicle striking several men.

Entering Richmond Avenue, Ferrara turned up Signs Road and flagged down a police car. He told the officers that his car had hit some pedestrians outside the Oriental Plaza restaurant. Ferrara was arrested, and with a blood alcohol level of .142, charged with driving while intoxicated.

For their part, plaintiffs testified that they did not surround Ferrara's vehicle (nor Monroy's), or otherwise threaten Ferrara outside the restaurant, and did not see anyone else do so.

At trial, we heard from the four plaintiffs, defendant Ferrara, his friend Monroy and John Butt, the manager of the Oriental Plaza. Mr. Butt's testimony was at odds with that of plaintiff Ronald Sirois, Jr., who testified that Butt had gone out to the parking lot/driveway area to try to take Ferrara's keys from him, presumably to demonstrate the restaurant's knowledge of Ferrara's condition for purposes of its responsibility under the dram shop law (General Obligations Law §11-101). Ferrara and Butt both denied that such had occurred. Testimony was elicited on behalf of plaintiffs that Ferrara's breath smelled of alcohol and that he was unsteady.

With respect to each of the plaintiffs, the verdict sheet asked whether he was struck by Ferrara's vehicle; and if so, did that constitute an assault. If not an assault,[FN3] the jury was directed to determine whether the defendant driver was negligently at fault. They found that defendant driver struck all four plaintiffs, but that none of the contact was assaultive or negligent.

The jury absolved the defendant restaurant of responsibility under the dram shop law, answering "No" to the following question: "Did plaintiffs prove that the Oriental Plaza: a) provided alcohol to Vincent Ferrara at a time when Mr. Ferrara was visibly intoxicated; b) which caused or contributed to his intoxication in any appreciable degree; and c) for which there is some reasonable connection between the intoxication and any contact by Vincent Ferrara's vehicle to one or more plaintiffs?"

* * *

For a Court to order a new trial under CPLR 4404 on the ground that the verdict is contrary to the weight of the evidence, the standard is whether the jury could not have reached their verdict "on any fair interpretation of the evidence" (Nicastro v Park, 113 AD2d 129, 134 [2d Dept]).

This case turned on which witnesses the jury believed, and they were entitled to accept the version of events presented by Ferrara and backed up by Carlo Monroy. The latter's testimony had elements that to a trier of fact may well have seemed unlikely to be the result of [*2]fabrication, for example, that in the melee outside the restaurant, Jeanine Monroy's hair was pulled.

The jury heard that John Butt was walking around giving customers shots of tequila, but could choose to credit Butt's testimony that he did not try to take Ferrara's car keys and the testimony that no bartender or waiter served alcohol to Ferrara or were aware or should have been aware of his drinking or intoxication. See Remillard v Louis Williams, Inc., 59 AD3d 764 (3d Dept).

Plaintiffs maintain that two rulings of this Court were in error: 1) the denial of the use of Ferrara's allocution plea to assault, which they contend would have entitled Ronald Sirois, Sr. and Ronald Giordano to judgment as a matter of law; and 2) including in its jury charges, PJI 2:14, the emergency doctrine.

On March 14, 2014, Vincent Ferrara pled guilty to two counts of assault in the second degree and one count of driving while intoxicated (Court exhibit I, page 3). At trial, plaintiffs did not specify which two of the four plaintiffs were covered by the plea. The transcript of Ferrara's allocution does indicate that he pled to assaulting Ronald Sirois, Sr. and Ronald Giordano (id., page 10), and plaintiffs' counsels here for the first time make the distinction.

At trial, plaintiffs cited no case for using the assault allocution [FN4] ; the jury did hear the details of Ferrara's drunk driving conviction. Now in their papers, plaintiffs cite Cohens v Hess, 92 NY2d 511 (a collision at an intersection where the sole traffic control device was a stop sign); Batal v Associated Univs., 293 AD2d 558 (2d Dept; entering an intersection without yielding the right-of-way); and Kaufman v Eli Lilly & Co., 65 NY2d 449 (exposure to diethylstilbestrol). In any event, even if properly focused at the outset of trial, it would have been too late for such dispositive motions (Brill v City of New York, 2 NY3d 648).

As for the emergency doctrine, while it is typically used for a motor vehicle accident in which there was no time to consider alternatives [FN5] , PJI 2:14 has been applied where a threat of personal violence is involved (Whiteside v City of New York, 293 AD2d 743 [2d Dept]). The jury was instructed that PJI 2:14 does not obtain if the situation facing Ferrara was not sudden or should reasonably have been foreseen by him, or was created or contributed to by defendant's own negligence, or that his conduct was not that of a reasonably prudent person.



* * *

In view of the foregoing, and having reviewed the parties' submissions [FN6] , IT IS ORDERED [*3]that plaintiffs' motions be denied in all respects.



November 13, 2017

ENTER

______________________________

Alan C. Marin

J.S.C. Footnotes

Footnote 1:The Sirois' plaintiffs in their reply papers (Affirmation in Further Support of Post-Trial Motion) seek a directed verdict for all three (see Cohen v Hallmark Cards, 45 NY2d 493).

Footnote 2:See the photograph that is defendants' exhibit G.

Footnote 3:Based upon the same acts, liability for assault and negligence cannot both be found (Yasuna v Big V Supermarkets, 282 AD2d 744 [2d Dept]).

Footnote 4:Referenced at trial was In Re Julian P., 129 AD3d 1222, in which the Third Department upheld the trial court's judicial notice of a plea allocation in a Family Court hearing on child abuse.

Footnote 5:In Barath v Marron, 255 AD2d 280, 281 (2d Dept), cited on behalf of the Sirois' plaintiffs, one vehicle was "suddenly cut off" by another vehicle when the latter was trying to merge onto a parkway. In Lifson v City of Syracuse, 17 NY3d 492, sun glare was held to be a foreseeable condition, and thus, defendants were not entitled to the 2:14 emergency charge.

Footnote 6:The following were reviewed: 1) For plaintiffs Ronald Sirois, Sr., Ronald Sirois, Jr. and Joseph Sirois, a Notice of Motion and an Affirmation in Support (with exhibit A), and an Affirmation in Further Support of Post-Trial Motion; 2) for plaintiff Ronald Giordano, a Notice of Motion and an Affirmation of Counsel (with exhibit A), and a Reply Affirmation; 3) for defendant Vincent Ferrara, an Affirmation in Opposition to both captioned cases, with appended to each, a Memorandum of Law on the failure of plaintiffs to annex the trial transcript to their motions; and 4) for defendant Oriental Plaza Restaurant, an Affirmation in Opposition to Plaintiff's Post-Trial Motions.