KAIN v. TESTA

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Supreme Court, Appellate Division, Fourth Department, New York.

Maureen KAIN, Plaintiff-Respondent, v. Mello J. TESTA, doing business as Club New York, Defendant-Appellant, et al., Defendants.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, GORSKI, SMITH, AND LAWTON, JJ. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Karen M. Richards of Counsel), for Defendant-Appellant. Brindisi, Murad & Brindisi-Pearlman, LLP, Utica (Anthony A. Murad of Counsel), for Plaintiff-Respondent.

 Plaintiff commenced this action seeking damages for injuries she sustained at a night club owned by Mello J. Testa (defendant).   Supreme Court properly denied that part of defendant's motion for summary judgment dismissing the negligence cause of action inasmuch as defendant failed to meet his initial burden of establishing his entitlement to judgment as a matter of law with respect to that cause of action (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Although defendant submitted his deposition testimony in which he asserted that he was unaware that any of his patrons were planning to cause a disturbance, he also submitted the deposition testimony of a patron who overheard other patrons that evening discussing the fact that a disturbance would occur.   On the record before us, there are issues of fact whether defendant, as the owner of the premises, had the opportunity to control the conduct of the patrons on his premises and was reasonably aware of the necessity to control their conduct and, if so, whether he breached his duty to control their conduct (see Williams v. TeDave Enters., 242 A.D.2d 861, 662 N.Y.S.2d 913;  Cittadino v. DeGironimo, 198 A.D.2d 801, 802, 604 N.Y.S.2d 387;  see also Lindskog v. Southland Rest., 160 A.D.2d 842, 843, 554 N.Y.S.2d 276;  Huyler v. Rose, 88 A.D.2d 755, 451 N.Y.S.2d 478, appeal dismissed 57 N.Y.2d 777;  Stevens v. Kirby, 86 A.D.2d 391, 394, 450 N.Y.S.2d 607).

 We further conclude, however, that the court erred in denying that part of defendant's motion seeking summary judgment dismissing the cause of action alleging that defendant violated General Obligations Law § 11-101.   Because the identity of the patrons who upended the pool table onto plaintiff's legs is unknown, plaintiff will be unable to establish in support of that cause of action that the particular patrons were underage or intoxicated (see Furio v. Palm Beach Club, 204 A.D.2d 1053, 1054, 613 N.Y.S.2d 314).   Moreover, because the identity of any such patrons is unknown, no “ ‘reasonable or practical connection’ between the sale of alcohol and the resulting injuries” can be established by plaintiff (Catania v. 124 In-To-Go, Corp., 287 A.D.2d 476, 477, 731 N.Y.S.2d 207, lv. dismissed 97 N.Y.2d 699, 739 N.Y.S.2d 99, 765 N.E.2d 302).   We therefore modify the order accordingly.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion in part and dismissing the second cause of action and as modified the order is affirmed without costs.

MEMORANDUM: