Opinion
7627 Index 159117/13
11-15-2018
David HIRSCH, Plaintiff–Respondent, v. Nicolas SOLARES, Defendant, Hill Country New York, LLC Doing Business as Hill Country Barbeque Market, et al., Defendants–Appellants.
Fixler & LaGattuta, LLP, New York (Paul F. LaGattuta III of counsel), for appellants. Debra S. Reiser, New York, for respondent.
Fixler & LaGattuta, LLP, New York (Paul F. LaGattuta III of counsel), for appellants.
Debra S. Reiser, New York, for respondent.
Acosta, P.J., Friedman, Manzanet–Daniels, Webber, Singh, JJ.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered March 7, 2018, which denied defendants Hill Country New York, LLC d/b/a Hill Country Barbeque Market and Hill Country New York Catering Company, LLC's (defendants) motion for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to grant the motion as to the causes of action for strict liability, and otherwise affirmed, without costs.
The motion court correctly found that issues of fact exist whether defendants breached a duty to maintain safe premises and protect their patrons from assaultive conduct by third parties and whether reasonable security measures could have thwarted or minimized the injury plaintiff suffered at the hands of defendant Solares (see King v. Resource Prop. Mgt. Corp., 245 A.D.2d 10, 665 N.Y.S.2d 637 [1st Dept. 1997] ; Florman v. City of New York, 293 A.D.2d 120, 124, 741 N.Y.S.2d 233 [1st Dept. 2002] ). Plaintiff's expert set forth the standard security measures applicable to defendants' type of establishment, which included a bar, a restaurant seating area, and a music stage. However, the record shows that there were no security measures in place, and, moreover, that the restaurant manager had observed the escalating incident between Solares and plaintiff without responding initially, that the scuffle moved from a table to the prep kitchen, covering a distance of approximately 40 feet, and that the worst of the beating was inflicted upon plaintiff in the prep kitchen.
The strict liability claims alleging violations of Alcoholic Beverage Control Law § 65(2) must be dismissed, because there is no evidence that defendants unlawfully served Solares alcohol while he was visibly intoxicated (see Zamore v. Bar None Holding Co.,LLC , 73 A.D.3d 601, 900 N.Y.S.2d 644 [1st Dept. 2010] ). Indeed, there is no evidence that defendants served Solares alcohol at all.