Present: HON. ALLAN L. WINICK, Justice

Transcription

1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. ALLAN L. WINICK, Justice VINCENT GRILLO, -against- Plaintiff, TRIAUIAS, PART 7 NASSAU COUNTY MOTION DATE: April 20,200l MOTION SEQUENCE: 004,005 INDEX NO /95 BREAKOUT MANAGEMENT CORP. AND DB INTERIORS d/b/a J-SPRATS DINING SALOON ON THE WATER, Defendant(s). The following papers read on this motion: Notice of Motion/ Order to Show Cause Answering Affidavits Replying Affidavits Briefs: Plaintiff s/petitioner s Defendants/Respondent s Plaintiff, Vincent Grillo, moves and defendants, Breakout Management Corp. and DB Interiors d/b/a J-Sprats Dining Saloon on the Water ( Sprats ), cross-move for summary judgment. On June 26, 1994, plaintiff paid an admission fee to Sprats. Defendants owned and operated Sprats at the time. Another patron, Michael Mauro ( Mauro ), got into an argument with an unknown party and began firing a weapon. Plaintiff, not involved in the argument at all, was struck by a bullet fired from the Mauro weapon. Plaintiff contends, based on the violent history at Sprats and its predecessor, Channel 80, defendants had sufficient and clear notice that a shooting was possible and probable. Plaintiff argues defendants negligence to take the appropriate steps, i.e. search incoming patrons of

2 Sprats for weapons, caused his injury. (Defendants state they, on occasion, used a handheld metal detector or wand.) Defendants argue the injury to plaintiff was not foreseeable, it happened suddenly (plaintiff contends there was a commotion involving Mauro and defendants staff and personnel could have diffused the situation). Defendants note the history of violence of Sprats and Channel 80 did not involve guns and is thereby not relevant, to plaintiff s situation. Defendants state they could not have prevented plaintiff s wounding by supervision. Defendants also contend documents relied upon by plaintiff from the State Liquor Authority ( SLA ) were intended to be subjected to an in camera review by this Court for a determination of the admissibility. Plaintiff notes plaintiff s counsel and defendants counsel spent much time at the SLA reviewing the documents and plaintiff denies any documents the parties selected needed in camera review. Plaintiff notes the documents from the SLA were copied and sent to defendants. Upon receipt of the documents, plaintiff contends he never requested an in camera review by the Court since the defendants original concern (that the SLA documents would contain personal information as to the principals of defendants) was a non-issue once the SLA documents were reviewed by defendants counsel and no personal information was revealed. The Court must conclude the defendants waived their original request for in camera review since the defendants counsel viewed said documents (the SLA first set of documents were to be sent directly to court, but those documents - allegedly the wrong ones - were destroyed by the record room). 2

3 Based on the above, the Court finds no impediment to the SLA documents (of prior incidents at Sprats) being included in plaintiff s summary judgment motion (plaintiff s Exhibits F through FF). The nature and scope of a tavern owner s duty to protect patrons is derived from the general concept of foreseeability; the risk reasonably to be perceived defines the duty to be obeyed and the risk. (Butler v E. M. D. Enterprises, Inc., 261 AD2d 842.) While a night club owed a patron a duty to control the conduct of persons on their premises so as to prevent harm to that patron, this duty is limited to conduct which defendant night club had an opportunity to control and of which it was reasonably aware. (Stevens v Spec, Inc., 224 AD2d 811.) Thus, a restaurateur/night club owner must use reasonable care to protect customers from injury arising from reasonably anticipated causes, but there is no duty to protect against an occurrence which is extraordinary in nature and which, therefore, the restauranteur/night club owner could not have reasonably have been expected to anticipate. (Butler v E.M.D. Enterprises, Inc., supra.) An unexpected altercation between patrons which results in injury is not a situation which could be reasonably expected to be anticipated or prevented. (Silver v Sheraton- Smithtown Inn, 121 AD2d 711.) Proof of prior disturbances at a tavern may be relevant on the issue of foreseeability in that such proof tends to establish that the owner had notice of danger to his patrons, the extent of the danger to be guarded against, and, thus, the nature of his duty. (Stevens v Kirby, 86 AD2d 391.) The prior altercations were not similar to the conditions prevailing when plaintiff was 3

4 injured so as to define the extent of the danger to be guarded against and thus, the nature of defendants duty to plaintiff. Proximate cause and foreseeability pose questions for the trier of the fact. (Silver v Sheraton-Smithtown Inn, supra.) The standards of summary judgment are well settled. A court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is, therefore, entitled to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320). Thus, when faced with a summary judgment motion, a court s task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial (Miller v Journal-News, 211 AD2d 626). Thus, the burden on the moving party for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact (Ayotte v Gervasio, 81 NY2d 1062). Neither party has met their respective burden for summary judgment. Was the shooting incident herein an unexpected and unforeseeable occurrence which a reasonably careful and prudent person would not have anticipated or guarded against? (See Tan v Classic Malaysian Restaurant, Inc., 261 AD2d 533.) Plaintiff also seeks to dismiss two of defendants conduct by plaintiff and assumption of risk by plaintiff. affirmative defenses - culpable While plaintiff cites the deposition of one Frank Basile, a witness on behalf of defendants, Mr. Basile states he was not involved in Sprats in any way when the incident occurred in 1994 (see defendants Exhibit 4

5 H, p. 14) and one John Wetzel was the manager of Sprats in 1994 (p. 13) and Mr. Wetzel was responsible for security (p. 15). Mr. Basile was just hanging out at Sprats on June 26, 1994 (p. 20) for he did not work there (p. 20). The fact that Mr. Basile had no idea what action or behavior of plaintiff might have lead to plaintiff s injuries (pp. 55/56) or that Mr. Basile had no idea what risks plaintiff was exposing himself to in going to Sprats (p. 58) is not surprising. From Basile s testimony, the persons of knowledge were a bookkeeper, Barbara Kleidman, Mr. Wetzel, the manager, and Philip Basile, the owner and now deceased father of Mr. Frank Basile. Mr. Basile s testimonydoes not preclude defendants two affirmative defenses at this point in the proceedings. Accordingly, plaintiff? motion and defendants cross-motion are denied in their entirety. This constitutes the order of the court. Dated: June 13, 2001 \ *. /AgLar& / Allan L. Winick J.S.C. ENTERED 5