EDON81912011 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Plaintiff@) Index No. i'i1.0 9 197 ALAN BERGER, - against - Civil Action Defend ant( s) WICKED WILLY'S, INC. d/b/a WICKED WILLY'S Summons TO THE ABOVE NAMED DEFENDANT: YOU ARE HEREBY SUMMONED to appear in this action by serving a Notice of Appearance on the plaintiffs, attorneys within 20 days after service of this Summons, exclusive of the day of service, or within 30 days after service is complete if this Summons is not personally delivered to you within the State of New York. In case of your failure to answer, judgment will be taken against you by default for the relief demanded in the Complaint. The basis of venue is that designated by the plaintiff pursuant to CPLR 5 503, as the defendant maintains its principal place of business in New York City, New York. Dated: New York, NY -1 Re spec t fully&mi t ted, NG 09 2011 mym -a miseberg, Esq. Attorney for Plaintif-f 345 Route 17 South Upper Saddle River, NJ 07458 (201) 236-8687 06UIJrr w%qffag Defendant's Address for Service: Wicked Willy's, Inc,, 149 Bleeker Street, New York, NY 10012 Supreme Court Records OnLine Library - page 1 of 10
~ SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Plaint$f(s) ALAN BERGER, Index No. - against - Civil Action De fend ant( s) WICKED WILLY'S, INC. d/b/a WICKED WILLY'S PART 130 CERTIFICATION I hereby certify that none of the papers served, filed or submitted to the court in this action is frivolous as defined in subsection (c) of Section 130-1.1 of the Rules of the Chief Administrator of the Courts. Dated: New York, NY July 25, 201 1 Re spec tfully submitted) n Michael Wiseberg, Esq. Attorney for Plaintiff 345 Route 17 South Upper Saddle River, N J 07458 (20 1) 236-8687 Supreme Court Records OnLine Library - page 2 of 10
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Plain tiff (s) Index No. ALAN BERGER, - against - Civil Action Defendant(s) WICKED WILLY S, INC. d/b/a WICKED WILLY S VERIFIED COMPLAINT The plaintiff, ALAN BERGER, by way of complaint against the defendant, alleges and shows the Court the following: AS AND FOR A FIRST CAUSE OF ACTION 1. At all times relevant and on June 20-2 1, 2009, the defendant owned, operated, supervised, and controlled the bar known as Wicked Willy s located at 149 Bleeker Street in New York City, New York 10012. 2. The defendant bar was and remains in the business of serving alcohol to patrons and earning a profit from the sale of alcohol served to its business guests. 3. Upon information and belief, and at all times relevant, including June 20-21, 2009, the defendant employed individuals to serve alcoholic beverages to patrons and to supervise and observe said patrons to ensure those visibly intoxicated were not served alcohol. -1- Supreme Court Records OnLine Library - page 3 of 10
4. Upon information and belief, and at all times relevant, the defendant, knowing that the bar was located in an area of New York City that was frequented by college students and to increase revenues from such younger patrons, created, organized, and set up several gaming tables in the rear of the bar for the purpose of encouraging such younger patrons, who were either still in college or who had just recently graduated, to use the defendant s product for consumption of beer in a game commonly known as beer pang." 5. The bar designed the tables for the purpose of having such younger patrons consume greater amounts of alcohol and thereby enhance beer revenue and overall profitability for the defendant. 6. Upon information and belief, and at all times relevant, neither the defendant nor its employees warned or otherwise communicated to those patrons using the defendant s products that the defendant did not supervise, monitor, or control any aspect of such product, including service of alcohol to anyone who became intoxicated and/or visibly intoxicated while playing or using such gaming tables, in wanton disregard of the health and safety of those patrons who used the defendant s products, thereby creating an unsafe and/or defective condition known to the defendant but concealed or omitted from the plaintiff. 7. Armed with such knowledge, and upon information and belief, and at all times relevant, the defendant and its employees should have supervised the use of the gaming table products and monitored the quantity of beer being consumed by its younger patrons to ensure those using the game and who -2- Supreme Court Records OnLine Library - page 4 of 10
became intoxicated as a result thereof would not continue to be served beer. 8. Upon information and belief, and at all times relevant, patrons themselves would serve alcoholic beverages to those participants playing at the defendant s gaming table instead of the defendant s own employees, and thereby endangered the safety of its patrons while using the defendant s gaming product, 9. Defendant failed to ensure that the gaming product was designed for safe use by those who were intended to use the defendant s beer pong product. 10. Upon information and belief, and at all times relevant, the defendant maintained or should have maintained a policy and had in place certain procedures that ensured only employees served beer to patrons, and that visibly intoxicated patrons were not served alcoholic beverages, including beer, while using the defendant s beer pong table product, for the safety of said patrons as well as the general public once said patrons left the bar. 11. The plaintiff, Alan Berger, having just turned 22 years old, was 2 patron and business invitee at Wicked Willy s, on June 20,2009, leaving the bar after midnight on June 21, 2009. 12. Beginning in the evening of June 20, 2009, the plaintiff used.he defendant s gaming product that was organized, created, designed, and set up 3y the defendant in the rear of its establishment for use by its younger patrons, md the plaintiff was served and consumed sufficient amounts of beer that caused iim to become visibly intoxicated. -3- Supreme Court Records OnLine Library - page 5 of 10
13. The defendant and its employees knew or should have known that the plaintiff would become and was visibly intoxicated by use of its product, yet failed to warn the plaintiff that neither the defendant nor its employees supervised, managed, controlled, and/ or monitored the use of the gaming product by its patrons or the consumption of beer by patrons while using the gaming product, or that patrons would be served beer without monitoring or supervision by the defendant or its employees, 14. The defendant and its employees should havc monitored the amount of alcohol being consumed by those patrons using the gaming product that the defendant organized, designed, created, and set up in its establishment, and should have had procedures and protocols for monitoring the service of beer to those business patrons using such product while in its establishment, and to ensure that only its employees served beer to the defendant's patrons. 15. The plaintiff left Wicked Willy's after midnight, it then being June 2 1, 2009, visibly intoxicated, and later boarded a commuter bus to make his way home to New Jersey. 16. The plaintiff did not consume any alcohol between the time he left Wicked Willy's on June 2 1, 2009, until the time he boarded the commuter bus to New Jersey. 17. The plaintiff, still extremely intoxicated, exited the commuter bus prior to reaching the stop for his home, and at approximately 3:30 a.m. on June 21, 2009, while crossing U.S. Highway 9 in Manalapan, New Jersey, was -4- Supreme Court Records OnLine Library - page 6 of 10
8 struck by a vehicle traveling northbound on such highway, causing the plaintiff to sustain serious and permanent bodily injuries. 18. The above-stated occurrence and the results thereof were caused by the defendant s negligent design and use of a product it set up in its establishment, and failure to monitor, supervise, and control the amount of alcohol served to and consumed by its patrons using its product and/or playing beer pong on the defendant s ping pong table, or warn that use of such product was not supervised, controlled, or monitored by the defendant, a product designed, controlled, and set up by the defendant for the purpose of generating and increasing overall beer consumption and sales, and negligently served and continued to serve the plaintiff in wanton disregard to the health and safety of said patron using the product it designed and placed in its establishment for its own purposes, unreasonably endangering thc life and health of said plaintiff; negligently failing to stop serving alcohol to the plaintiff once he became visibly intoxicated through the use of its product; in failing to have only its employees serve alcoholic beverages, including beer, to the plaintiff; in failing to have made adequate and timely observation of the plaintiff and refusing to serve him any alcoholic beverages once he was visibly intoxicated; in failing to train and supervise its employees regarding visibly intoxicated patrons and to monitor, supervise, and control the amount of alcohol served to those younger patrons using the defendant s beer pong product; failing to warn, advise, or otherwise communicate to said patrons and/or concealing that the defendant did not -5- Supreme Court Records OnLine Library - page 7 of 10
I " 0 monitor, control, supervise, manage, and/or oversee the amount of alcohol served to those patrons who used the defendant's gaming product causing such product and its design to become hazardous, defective, unsafe, and dangerous; improper and negligent design of such 'lbeer pong" products, knowing that the use of same was not supervised, monitored, and/or controlled by the defendant and such defect created an unsafe and dangerous condition known to the defendant; and in being otherwise careless, reckless and negligent in the ownership, maintenance, design, operation and control of said business establishment and supervision and training of its staff, recklessly disregarding the plaintiff's health and safety by serving and continuing to serve him alcohol even after he became intoxicated while using its beer pong product that was designed, sponsored, controlled, organized, created, and/or set up by the defendant to enhance its revenue. 19. Because of the above-mentioned occurrence, the plaintiff sustained serious bodily injuries and to have suffered severe shock, pain and mental anguish and physical pain and emotional upset, and upon information and belief, all of plaintiff's injuries and their effects are permanent; and that as a result of said injuries plaintiff has been and will continue to be treated for such injuries and be obliged to incur expenses for medical care and attention. - 6 - Supreme Court Records OnLine Library - page 8 of 10
WHEREFORE, the plaintiff demands that judgment be entered against the defendant, awarding plaintiff money damages, compensatory damages, punitive damages, non-economic and economic damages, together with interest, costs and disbursements of this action. Dated: New York, NY July 25, 201 1 Respectfujj;ypabflitted, Attorney for Plaintvf 345 Route 17 South Upper Saddle River, N J 07458 (20 1) 236-8687 - 7 - Supreme Court Records OnLine Library - page 9 of 10
STATE OF NEW YORK ) 1 ss.: COUNTY OF NEW YORK 1 The undersigned, an attorney admitted to practice in the Courts of New York State, states under penalty of perjury that I am the attorney for the plaintiff in the within action; I have read the foregoing VERIFIED COMPLAINT and know the contents thereof; the same is true to my own knowledge, except as to the matters I believe to be true. The reason this verification is made by me and not by my client is because the client is not presently in the County where I maintain my office. The grounds of my belief as to all matters not stated upon my own knowledge are the materials in my file and the investigation conducted by my office. Dated: New York, NY,July 25, 201 1 R e m i t t e d, Michael Wiseberg, Esq. Attorney for Plaintiff 345 Route 17 South Upper Saddle River, N J 07458 (20 1) 236-8687 -8- Supreme Court Records OnLine Library - page 10 of 10