AUGUST v. SARATOGA CASINO HOLDINGS LLC (2026)

The plaintiff was physically assaulted by a customer (the Defendant Robert McCoy) while attempting to leave a nightclub (Vapor). As a result of the incident, the plaintiff is seeking to recover monetary damages against the customer who assaulted him (McCoy, in default), as well as against the owners and operators of the nightclub (“Owner/Operator Defendants”). This decision concerns the following: (1) the summary judgment motion made by the Owner/Operator Defendants (Motion No. 7); (2) the plaintiff's motion seeking a trial preference and other relief (Motion No. 6); and (3) the scheduling of the inquest that will be conducted on the claims against the customer who assaulted the plaintiff (see NYSCEF Document No. 55 [Default Order]).

The primary issue in dispute on the summary judgment motion concerns the security provided by the Owner/Operator Defendants at the nightclub and whether the Owner/Operator Defendants exercised “reasonable care to maintain their property in a safe condition” (Milton v I.B.P.O.E. of the World Forest City Lodge, #180, 121 AD3d 1391, 1391 [3d Dept 2014]). The Owner/Operator Defendants recognize that they had to “minimize foreseeable dangers on their property, including [from] the criminal acts of third parties” (id. [internal quotation marks and citations omitted]), but they contend that they cannot be held liable under the tort law because the assault was unforeseeable and unexpected (see id. at 1391-1394; see also Wirth v Wayside Pub, Inc., 142 AD3d 1346 [4th Dept 2016]; Giambruno v Crazy Donkey Bar & Grill, 65 AD3d 1190 [2d Dept 2009]; Boyea v Aubin, 65 AD3d 736 [3d Dept 2009]; Crowningshield v Proctor, 31 AD3d 1001 [3d Dept 2006]; Stafford v 6 Crannel St., Inc., 304 AD2d 997 [3d Dept 2003]).

In support, the Owner/Operator Defendants have provided, among other things, the deposition testimony of the plaintiff, the director of security, and the two responding security officers, as well as three videos of the incident. Based on the evidence presented, the Court finds that the Owner/Operator Defendants have satisfied their initial burden on the motion. The videos (as well as the testimony) demonstrate that the incident occurred shortly after the assailant stopped near the exit and began dancing. While other customers were nearby, the videos do not show a large crowd attempting to leave or exit the nightclub at the time. Rather, the videos show the plaintiff moving towards the exit, getting in front of his female companion, and then attempting to move the assailant out of the way, at which point the assailant suddenly pushed the plaintiff to the floor and immediately kicked him. Even when viewing the evidence in the light most favorable to the plaintiff, as the non-moving party, these materials demonstrate that the assault was sudden and unexpected, and that the entire incident occurred within a matter of a seconds.

Further, the videos show the response of two security officers. While it is not entirely clear whether they instructed the assailant to move during his brief dancing, the videos show that they responded to the encounter immediately after the assailant pushed the plaintiff. As for the assailant's alleged consumption of alcohol, the deposition testimony and other evidentiary materials do not support the plaintiff's allegation that the assailant had consumed any excessive amount. In fact, the plaintiff admitted at his deposition that he observed the assailant with only a single beer and, although the plaintiff alleges that the assailant's female companion made a statement to him that the assailant had “been drinking,” this alleged statement is inadmissible hearsay. In addition, when asked about the existence of prior instances of violence at the nightclub, the witnesses deposed (including the plaintiff and security) were unaware of any prior assaults.

In opposition, the plaintiff disputes that the assault was unforeseeable and unexpected. He has relied on the evidentiary materials submitted in support of the motion (including the videos) as well as an affirmation from his own expert (a trained security officer). The plaintiff contends that the security should have prevented the assailant from dancing near the exit; that additional security should have been present and positioned at additional locations; and that another door should have been open for the plaintiff to exit.

The Court finds that the opinions of the plaintiff's expert are conclusory and unsupported by the record. The expert, for example, has failed to articulate the acceptable industry standards, such as the acceptable reaction time in the industry for security to respond to a customer dancing near a doorway (e.g., one second, two seconds), the acceptable number of security guards, and the acceptable time for the security to call EMS or the police. The opinions of the expert also rest on several assumptions unsupported by the evidence, including his characterizations of the assailant's prior behavior, the number of people attempting to leave or enter the nightclub, and the availability of another exit point. The videos, for example, do not depict any prior “escalating tensions” or “aggressive behavior.” Nor do they show the plaintiff trapped within an uncontrolled crowd of people. Rather, the videos depict the assailant dancing in a non-threatening manner and the plaintiff impatiently attempting to leave the nightclub and move the assailant himself rather than engage in non-offense alternatives, such as asking an employee inside the nightclub for help or pulling on the handle of the adjacent door to open it (as the video shows the security officer opening it without any difficulty).

In any event, these issues concern the scope of the duty imposed on landowners, which is a legal issue for the Courts to determine. Here, the videos reveal that the entire incident occurred within a matter of seconds, and that the security responded immediately once the assailant became aggressive and threatening. As a landowner is not an insurer of customer safety, the Court finds that the security's response was more than sufficient and complied with the duty of care (see Wirth, 142 AD3d at 1346; Giambruno, 65 AD3d at 1190; Boyea, 65 AD3d at 736; Crowningshield, 31 AD3d at 1001; Stafford, 304 AD2d at 997; see also Maheshwari v City of New York, 2 NY3d 288 [2004]; Kranenberg v TKRS Pub, Inc., 99 AD3d 767 [2d Dept 2012]; Ali v Miller's Ale House, Inc., 2018 NY Misc. LEXIS 14624, 2018 NY Slip Op 34435[U] [Sup Ct, Suffolk County 2018], affd 189 AD3d 966 [2d Dept 2020]; Passaro v JEC IL LLC, 2009 NY Misc LEXIS 3990, 2009 NY Slip Op 30306[U] [Sup Ct, New York County 2009]).¹

The expert's conclusory opinion that the security officers neglected medical protocols is also insufficient to create a triable issue of fact. Even assuming for the sake of argument that medical protocols were not followed (or that they were not followed quick enough), the plaintiff has failed to provide any competent medical proof that this alleged negligence caused or contributed to his injuries. In addition, even if any such medical proof existed, the record also indicates that the plaintiff refused to accept medical care while at the premises and, as such, the alleged failure to provide such care is irrelevant.

Similarly unavailing is the expert's opinion that the security officers should have detained the assailant after the assault. Despite the expert's opinion that such would have been “standard protocol,” there is no evidence that the assailant remained a threat after the assault or that he committed any subsequent torts while at the premises or against the plaintiff. As such, the security's alleged failure to detain the assailant is irrelevant for purposes of tort liability and, in any event, did not cause the plaintiff any injuries.

The case law cited by the plaintiff is also factually distinguishable. In Nallan, for example, the plaintiff introduced evidence that there had been 107 reported crimes in the building in the 21 months which preceded the assault (a shooting) and that at least 10 of these unlawful acts were crimes against the person (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519 [1980]). Here, in contrast, the record contains ZERO prior instances of violence.

Similarly, in Kavanagh, the plaintiff alleged that he notified security in advance of a potentially explosive situation involving individuals who had been verbally abusive to him (Kavanagh v Vigario, 309 AD2d 640, 640 [1st Dept 2003]). There, the security was aware of the alleged danger to the plaintiff for a sufficient period of time prior to the assault. Here, in contrast, no evidence exists that the assailant engaged in any threatening behavior prior to the assault or that the security knew or should have known that the assailant was a potential threat (as the plaintiff subjectively believed). Moreover, although the plaintiff testified that he yelled for “security” as he moved towards the exit, no evidence exists that the security heard the plaintiff over the noise or understood what he was attempting to communicate and, in any event, the plaintiff's alleged plea for assistance did not provide sufficient notice because the plaintiff waited only one or two seconds for security to respond before he proceeded to attempt to move the assailant on his own.

Accordingly, the plaintiff's proof has failed to create a triable issue of fact on any of the negligence-based claims against the Owner/Operator Defendants. The Court further agrees that no evidence exists to support the alleged violation of the Dram Shop Act. As for the relief requested by the plaintiff on his motion (No. 6), the plaintiff challenges the responses of the Owner/Operator Defendants to his requests for admissions regarding the authenticity of the videos and other materials exchanged during discovery, among other things. The Court, however, does not consider any of the alleged admissions as sufficient to create a triable issue of fact, and further notes that the authenticity of these materials has not been disputed on the summary judgment motion by either side. In fact, as both sides have relied on the videos to support their positions, the Court has considered them to be authentic for purposes of the summary judgment motion. The Court has also presumed the authenticity of the discovery materials provided by the Owner/Operator Defendants in considering the plaintiff's opposition papers (see CPLR 4540-a). As such, the granting of the relief requested by the plaintiff would not make any difference. Moreover, given that no triable issues of fact exist, the plaintiff's motion for a trial preference is denied as moot. It is therefore,

ORDERED that the motion made by Defendants, Saratoga Casino Holdings, LLC and Saratoga Harness Racing, Inc. (Motion No. 7) is GRANTED and the motion made by the plaintiff (Motion No. 6) is DENIED as academic; and it is further

ORDERED, that the complaint is hereby DISMISSED as against Defendants, Saratoga Casino Holdings, LLC and Saratoga Harness Racing, Inc.; and it is further

ORDERED that an inquest is scheduled for September 24, 2026 at 2:00 p.m., to be conducted in person and without a jury, unless otherwise directed by the Court, at the Saratoga County Supreme Court, 30 McMaster Street — Building 3, Ballston Spa, New York, for the purpose of hearing proof on damages and determining the amount due to the plaintiff on his claims against the remaining defendant in this action, ROBERT MCCOY, who has been found to be in default by Order entered May 1, 2025 (NYSCEF Document No. 55). Pursuant to CPLR 3215(b) and the Uniform Rules of this Courts (Rule 202.46), the plaintiff may submit affidavits/affirmations from himself and/or other witnesses (as well as certified medical records and any other documents) as proof of damages and is further directed to submit any such affidavits/affirmations of witnesses and any other evidentiary materials to the Court by September 4, 2026, on notice to the Defendant, Robert McCoy by first class mail. If the Defendant, Robert McCoy gives reasonable notice that he will appear at the inquest, the plaintiff shall make such witnesses who have submitted an affidavit/affirmation on damages available for cross-examination; and it is further

ORDERED, that the Defendant, Robert McCoy is directed to notify the Court and the plaintiff's counsel in writing by September 15, 2026 if he intends to appear at the inquest to cross-examine witnesses and submit evidence on the issue of damages.

This shall constitute the Decision & Order of the Court. The Court is uploading the original into NYSCEF for filing and entry. The Court directs the parties to serve notice of entry in accordance with the Local Protocols for Electronic Filing for Saratoga County.

So-Ordered.

Papers Considered:

NYSCEF Document Nos. 1, 4, 55, 99-138

FOOTNOTES

1.   Nor is there anything in the record to indicate that additional security guards were necessary or that they could have prevented the assault. Again, the assailant committed the assault suddenly and without warning, in response to the plaintiff aggressively pushing him. The assailant further committed the assault in front of two security guards. It is therefore entirely speculative to conclude that an additional security guard would have made any difference.

Richard A. Kupferman, J.