Plaintiff, Defendants.

Transcription

1 SHORT FORM ORDER Present: RICHARD COSENZA, SUPREME COURT - STATE OF NEW YORK HON. -JOSEPH A. DE MAR0 Justice TRIAL/IAS, PART 10 NASSAU COUNTY Plaintiff, -against- D. BRAF, LTD., 737 MERRICK AVENUE, LTD., J. SPRAT'S DINING SALOON and STEVE E. ASADORIAN, MOTIGN DATE: January 19, 2001 INDEX No /95 SEQUENCE No. 4 Defendants _ The following papers read on this motion: Notice of Motion and Supporting Papers Affirmation in Opposition Reply Affirmation

2 Motion by defendants, D. Braf, Ltd., 737 Merrick Ave., Ltd. and J. Sprat's Dining Saloon for summary judgment pursuant to CPLR 3212 dismissing the complaint against them, is granted dismissing the First and Second causes of action of the complaint against defendant 737 Merrick Ave., Ltd. and against D. Braf d/b/a/ J. Sprat's Dining Saloon. Although this motion has been made more than 120' days after the filing of the note of issue herein, defendants have shown "good cause" for this court to allow this motion (CPLR 3212 (a) 1. The delay was through no fault of the moving defendants, or their attorney. The plaintiff's attorney had mistakenly mailed the Note of Issue to defendants' attorney's former address of four years ago although plaintiff's attorney had possession of the defendants' attorney's proper current address attorney's office had not entered it but apparently plaintiff's into his computer. Since the Note of Issue was improperly served, the moving defendants never received notice of its filing in time to file their summary judgment motion within 120 days thereof. The instant motion was, however, made within 120 days from the date that defendants' attorney first received notice of the filing of the Note of Issue (August 18, 2000) and it appears to have merit. There can be no prejudice to plaintiff in this court's finding good cause" since plaintiff has agreed not to oppose the instant summary judgment motion on the ground of untimeliness and these defendants agreed not to move to strike plaintiff's note of issue. It is thus clear to all concerned that good cause exists for this court to allow the 2

3 instant motion. Wide latitude is afforded in finding "good cause" under CPLR 3212 (a). (See: Cibener v Citv of New York,'268 AD2d 334). Accordingly, this court, in its discretion hereby permits defendants to file this late motion for summary judgment (Goodman v Gudi, 264 AD2d 758). The first two causes of action of the complaint are against the moving defendants. The first cause, based upon common law, the Dram Shop Act (Gen. Obligations Law Set (l), and the ABC Law Set 65), seeks damages against both the owner of the building and the operator of the bar and/or nightclub for causing the intoxication of a Mr. Asadorian who then assaulted and beat plaintiff. The second cause of action seeks punitive damages. Partial summary judgment is granted dismissing the second cause of action for failure to state a cause of action. A claim for punitive damages does not constitute a separate cause of action. (Bishop v Bostick, 141 AD2d 487, 489, Watts v Clark Associates Funeral Home. AI Inc 234 AD2d 538; Farrell v K.J.D.E. Car-o., 244 AD2d 905). The record here shows that 737 Merrick Ave., Ltd. is the owner of the building 737 Merrick Ave., Westbury, N.Y. pursuant to a Deed dated July 31, 1986 from Philip Basile as grantor and 737 Merrick Ave., Ltd. as grantee (Deed 9770 Page recorded in Nassau County Clerk's Office on November 25, 1986). The said owner/landlord "737 Merrick Ave., Ltd." leased the entire building to "D. Braf Inc." who operates a bar and restaurant there under the assumed name J. Sprats" which exercises complete domain and 3 :

4 control over the rented premises. The employees there are those of D. Braf which holds the liquor license for the bar. The monthly rent paid by D. Braf to 737 Merrick Ave. is used to pay the carrying charges. 737 Merrick Ave., the landlord and title holder, does no more than collect the rental due for use of premises by D. Braf and pays the carrying charges. The fact that Philip Basil was the sole shareholder of both 737 Merrick Ave., Ltd. and D. Braf does not warrant disregard of the separate corporate entities. (Total Care Health Industries, Inc. v Deot. of Social Services, 144 AD2d 678). There is no evidence that the owner/landlord (737 Merrick Ave., Ltd.) owned or had any control over the bar or that it sold or gave alcoholic beverages to Mr. Asadorian or to anyone else on the premises or refused to protect plaintiff from assault or harm. In fact, there is no showing that any officer, director _ or other employee of 737 Merrick Ave., Ltd. was present on the premises on, the date and time of the alleged assault and battery. As observed in Zuccari v Hoffman, 267 AD2d 1067, liability under the Dram Shop Act is limited only to the party who sold the alcoholic beverage. Therefore, that part of the complaint brought under the Dram Shop Act (GOL Set (1)) and/or Alcoholic Beverage Control Law Set 65 is therefore dismissed against 737 Merrick Ave., Ltd. (Rodriguez v Memoli, 176 AD2d 102). With respect to that part of the complaint against 737 Merrick Ave., Ltd. based on the common law, the owner of a building ordinarily owes no duty to control the conduct of the visitors or tenants for the benefit of third persons. A landlord is under a 4

5 common-law 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" Christie, 71 Cittadino v AD2d 801). Since 737 Merrick Ave., Ltd. did not own the bar or the liquor license and was not present or otherwise did not retain any control over the restaurant/bar, J. Sprats, on the evening in question, it owed plaintiff no duty of care and was not liable for his injuries. 179 NY2d 76, 85). As stated in 3 Warren's Nealisence (Persons Injured) at p 328 "Although a landlord or an owner of a public establishment has neither a duty to protec,t its patrons from unforeseeable and unexpected assaults, nor a duty to take any protective measures unless there is a foreseeable risk of harm from criminal activities of third persons on the premises, a landowner nevertheless has the duty to control the conduct of persons present on its premises when it has the opportunity to control or is reasonably aware of the necessity for such contro1.n As it relates to alcoholic consumption, the rule is that liability will be imposed only when the owner is present and then only when the owner knows that he can and has the opportunity to control the third parties' conduct and is reasonably aware of the necessity for such control. (See: Cavanauqh v Council 4360, 142 DeGironimo, 198 (See: Lashwav v Kinq, AD2d 919). Here, the plaintiff offered no proof that 737 Merrick Ave., Ltd. had the opportunity to control its customers or that 737 Merrick Ave., Ltd. knew or were reasonably aware of the need for such control (See: Furio v Palm Beach Club, Inc., 204 (D'Amico v AD2d 202; 1053). The conclusory affirmation in opposition by plaintiff's AD2d 5

6 attorney is not based upon personal knowledge of the facts but rather upon conjecture and therefore may not be considered by this court as admissible evidence. Accordingly, partial summary judgment is granted dismissing that part of the complaint based upon the common law against 737 Merrick Ave., Ltd. With respect to defendant, D. Braf, d/b/a/ Sprats, the owner of the liquor license and the bar, plaintiff testified that Mr. Asadorian was standing against the bar and when plaintiff approached, he was almost face to face with Mr. Asadorian but not a word was spoken between the two men; and as plaintiff turned away from Mr. Asadorian to go to the men's room, plaintiff without warning or provocation was struck on the back of the head by Mr. Asadorian and lost consciousness. It is apparent that there was nothing in plaintiff's testimony that even remotely suggests that Mr. Asadorian was visibly intoxicated or that D. Braf had been serving Mr. Asadorian in a visibly intoxicated condition. Frank Basile, Vice President of D. Braf, repeated in his affidavit what he had stated in his deposition testimony namely, the policy of Dr. Braf to the effect that D. Braf's employees were instructed not to further serve any patron who appeared intoxicated and/or became unruly. Further, it is obvious that this was an unexpected altercation which could not have been anticipated or prevented. No amount of reasonable care could have prevented this unprovoked, sudden attack by Mr. Asadorian as plaintiff walked by him. Given plaintiff's testimony with respect to Mr. Asadorian's appearance and demeanor coupled with Basile's testimony and affidavit as to D. 6

7 Braf's serving policy, the defendant D. Braf has negated the possibility that alcohol was unlawfully served to a visibly intoxicated customer, namely Mr. Asadorian. (See: MacDousall v Kelsch, 161 AD2d 886; Costa v 1648 Second Avenue Restaurant Inc., 221 AD2d 299). The plaintiff has not demonstrated that Mr. Asadorian had been served at J. Sprat's in a visibly intoxicated condition. (Williams v TeDave Entreorises, Inc., 242 AD2d 861; Camobell v Lorenzo's Pizza Parlor, Inc., 172 AD2d 478). Proof of mere consumption of alcohol is insufficient to defeat a defendant's motion for summary judgment on a Dram Shop cause of action. (Costa v 1648 Second Avenue Restaurant Inc., supra; Pizzaro v Citv of New York, 188 AD2d 591). Indeed, evidence of a patron's unexplained aggression is insufficient as a matter of law to.create a factual issue as to the assailant's intoxication. (Gonvea v Folser, 133 AD2d 964, 966). It is clear that plaintiff has failed to meet his evidentiary burden to come forward with admi_ssible proof that would demonstrate the necessity of a trial as to an issue of fact. (Zolin v Roslvn Svnaqoque, 154 AD2d 369; HNC Realty Co. v Bav View Apts., 64 AD2d 417). Partial summary judgment is granted dismissing plaintiff's claim against defendant Braf based upon violation of the Dram Shop Act. With respect to the common law duty of D. Braf to exercise reasonable care.for the protection of its patrons, Mr. Asadorian's unexpected assault and battery on plaintiff is not a situation that D. Braf could reasonably be expected to have anticipated or prevented. (See Silver v Sheraton-Smithtown Inn, 121 AD2d 711; 7

8 Williams v TeDave Enterprises, supra; Lindskos v Southland Restaurant, Inc., 160 AD2d 842; Garofalo v Henriettia Italic Inc., 175 AD2d 580). Therefore, summary judgment is granted dismissing the complaint based on the common law against D. Braf d/b/a J. Sprat's Dining Saloon. Movants' motion is granted; plaintiff's causes against movants are dismissed. The action against defendant Asadorian is severed and continues. This constitutes the Order and Judgment of the Court. Dated: March 16,