Negligence, But Not Dram Shop Act, Claim Survives Summary Judgment

In Ricaurte v. Inwood Beer Garden & Bistro Inc., 2018 NY Slip Op 07242 (App. Div. 1st Dept. Oct. 30, 2018), the court held that the lower court should have granted defendant’s motion for summary judgment as to plaintiff’s claim under New York’s Dram Shop Act, but that it should have denied it as to plaintiff’s common law negligence claim.

As to the Dram Shop Act claim, the court explained:

Defendant was entitled to summary judgment dismissing plaintiff’s cause of action under the Dram Shop Act (General Obligations Law § 11-101; see also Alcohol Beverage Control Law § 65). A witness testified that plaintiff’s assailant did not appear visibly intoxicated at the time he was served two drinks by defendant. This evidence was sufficient to make out a prima facie showing that the assailant was not visibly intoxicated at the time he was served alcohol, since it is clear from the record that he was not served from that point in time until he attacked plaintiff (see Coffey v Esparra, 88 AD3d 621, 622 [1st Dept 2011]; compare Cohen v Bread & Butter Entertainment LLC, 73 AD3d 600, 601 [1st Dept 2010]). In opposition, plaintiff failed to raise a triable issue of fact, and, therefore, defendant has established its entitlement to judgment as a matter of law dismissing the Dram Shop Act cause of action[.]

It reached the opposite conclusion, however, as to plaintiff’s negligence claim. Citing precedent for the principle that “[a] possessor of real property is under a duty to maintain reasonable security measures to protect those lawfully on the premises from reasonably foreseeable criminal acts of third parties”, the court held:

While the first assault was sudden and unforseeable, and therefore not actionable, defendant failed to demonstrate as a matter of law that it took reasonable actions to protect plaintiff from the assailant on the second assault and that it was not foreseeable. It is true that the husband of defendant’s owner averred that he was escorting the assailant, who appeared to have calmed down “somewhat,” from the premises, when he suddenly lunged two or three feet to where plaintiff was standing, and struck him. However, another witness testified that immediately prior to assailant’s attack on plaintiff, he did not see anyone accompanying or escorting the assailant while the assailant exited defendant’s establishment. This raises issues of fact as to whether defendant took reasonable precautions to prevent the second assault[.]