Preview
FILED: SUFFOLK COUNTY CLERK 12/12/2022 06:13 PM INDEX NO. 605868/2020
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/12/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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ALEXANDER PONCE,
AFFIRMATION IN
Plaintiff, SUPPORT
-against-
LA HACIENDA RESTAURANT CORP., LA HACIENDA
RESTAURANT, 1620 NEW YORK AVENUE LLC
and JOHN DOES 1-5 (A Fictitious Name for Employees Index No.: 605868/2020
and/or Patrons of La Hacienda Restaurant),
Defendants.
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STEVEN R. ENGRASSIA and AMANDA N. CHIARELLO, attorneys duly admitted to
practice law before all the Courts of the State of New York, affirms the following under penalties
of perjury.
1. We are associates of the law firms CUOMO LLC and MARKS, O’NEILL,
O’BRIEN, DOHERTY & KELLY, P.C., respectively, attorneys for the defendant, 1624 EL
MILAGRO CORP. d/b/a LA HACIENDA RESTAURANT (La Hacienda), in the above-
captioned matter and are fully familiar with the facts and circumstances heretofore had herein,
except as to those matters stated to be upon information and belief, and as to those matters, which
we believe to be true, the sources of our information and the grounds for our belief are
conversations and communications with our client and a review of the contents of our file.
2. We submit this affirmation in support of La Hacienda’s motion for summary
judgment on the basis that La Hacienda was not negligent or otherwise the cause of Plaintiff’s
alleged injuries and that La Hacienda did not violate General Obligations Law § 11-101.
3. This action arises of an alleged fight that took place on September 1, 2019 at La
Hacienda Restaurant, located at 1624 New York Avenue, Huntington Station, New York.
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PROCEDURAL HISTORY
4. Plaintiff, Alexander Ponce, commenced this action with the filing of the Summons
and Complaint on May 27, 2020. A copy of Plaintiff’s Summons and Complaint is annexed
hereto as Exhibit “A”.
5. On or about August 7, 2020, La Hacienda interposed its Verified Answer to the
Complaint. A copy of La Hacienda’s Verified Answer is annexed hereto as Exhibit “B”.
6. On or about September 22, 2020, 1620 New York Avenue LLC (1620 New York)
interposed its Answer to the Complaint. A copy of 1620 New York’s Answer is annexed hereto
as Exhibit “C”.
7. On or about August 24, 2020, Plaintiff exchanged a Bill of Particulars. A copy of
the Bill of Particulars is annexed hereto as Exhibit “D”.
8. Thereafter, Plaintiff appeared for a deposition on or about August 4, 2021. A copy
of Plaintiff’s deposition transcript is annexed hereto as Exhibit “E”.
9. On or about November 1, 2021, Mr. Angel Sorto, on behalf of La Hacienda,
appeared for a deposition. A copy of Mr. Sorto’s deposition transcript is annexed hereto as
Exhibit “F”.
10. On or about June 10, 2022, Mr. Arman Mehrara, on behalf of 1620 New York,
appeared for a deposition. A copy of Mr. Mehrara’s deposition transcript is annexed hereto as
“Exhibit “G”.
11. Following the completion of discovery, Plaintiff filed the Note of Issue and
Certificate of Readiness on August 15, 2022. Pursuant to the Compliance Conference Order
filed together with the Note of Issue, any motions for summary judgment are to be made within
one-hundred-and-twenty (120) days following the filing of the Note of Issue. A copy of the Note
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of Issue and Certificate of Readiness is annexed hereto as Exhibit “H”. Accordingly, this
motion is timely.
STATEMENT OF FACTS
12. Please see La Hacienda’s Statement of Material Facts.
ARGUMENT
13. The proponent of a motion for summary judgment must merely make a prima facie
case showing his entitlement to the judgment as a matter of law, tendering sufficient evidence to
eliminate any material issue of fact from the case (see Weingrad. New York Univ. and Med. Ctr.,
64 N.Y.2d 851 [1985]; see also Amedure v. Standard Furniture Co., 125 A.D.2d 170 [3d Dept.
1987]).
14. Once the movant has satisfied this burden, it is incumbent on the party in opposition
to the motion to assemble and lay bare affirmative proof to establish that a genuine issue of fact
exists (see Trials West, Inc. v. Wolff, 32 N.Y.2d 207 [1973]).
15. The proof offered to raise a triable issue of fact must be in admissible form (see
Vermette v. Kenworth Truck Co., 68 N.Y.2d 717, 717 [1986]). Bald and conclusory allegations
are not enough to defeat a motion for summary judgment (see S.J. Capelin Assoc., Inc., v. Globe
Mfg. Corp., 34 N.Y.2d 338 [1974]). A motion for summary judgment should be granted when
the proof tendered by the party in opposition to the motion is comprised of mere conclusions,
expressions of hope or unsubstantiated allegations or assertions (see Zuckerman v. City of New
York, 49 N.Y.2d 557, 562 [1980]).
16. Plaintiff’s Complaint alleges eight (8) causes of action that boil down to three (3)
separate claims: (1) an assault and battery claim; (2) a negligence claim; and (3) a Dram Shop
claim. These three (3) claims will be addressed separately.
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I. LA HACIENDA IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S
ASSAULT AND BATTERY CLAIM BECAUSE THERE IS NO EVIDENCE THAT
PLAINTIFF WAS ASSAULTED OR BATTERED BY ANYONE FROM LA
HACIENDA
17. “In order to sustain a cause of action to recover damages for assault, there must be
proof of physical conduct placing the plaintiff in imminent apprehension of harmful conduct”
(Timothy Mc. V. Beacon City Sch. Dist., 127 A.D.3d 826, 829 [2nd Dept. 2015]; see also, Gabriel
v. Scheriff, 115 A.D.3d 791, 792 [2014]; Fugazy v. Corbetta, 34 A.D.3d 728, 729 [2006]; Cotter
v. Summit Sec. Servs. Inc., 14 A.D.3d 475, [2005]; Bastein v. Sotto, 299 A.D.2d 432, 433 [2002]).
18. To recover for a claim of battery, a Plaintiff must prove that there was a bodily
contact, made with intent, that was offensive in nature (Cerilli v. Kezis, 16 A.D.3d 363, 364 [2nd
Dept. 2005]; Siegell v. Herricks Union, 7 A.D.3d 607, 609 [2004]). The intent “required for
battery is ‘intent to cause a bodily contact that a reasonable person would find offensive’”
(Cerilli, quoting Jeffreys v. Griffin, 1 N.Y.3d 34, 41 n2 [2003]).
19. In this case, the record is devoid of any evidence that anyone from La Hacienda
threated to, intended to, or actually contacted Plaintiff. The third-party that allegedly struck
Plaintiff during the fight was another patron of La Hacienda. In fact, once the fight involving
Plaintiff broke out, La Hacienda took immediate steps to stop it. There is simply no evidence
that La Hacienda, including any of its employees, intended to or actually contacted Plaintiff in
any way whatsoever. Accordingly, La Hacienda is entitled to summary judgment on Plaintiff’s
assault and battery claim.
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II. THE EVIDENCE ON THE RECORD DEMONSTRATES THAT LA HACIENDA
IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S NEGLIGENCE
CLAIMS BECAUSE IT IS UNDISPUTED THAT LA HACIENDA WAS NOT
NEGLIGENT AND NOT A PROXIMATE CAUSE OF THE OCCURRENCE
20. It is well-established law in New York State that there are three elements which
must be present for a plaintiff to recover from a defendant in tort. These elements are: (1) the
existence of a legal duty from the defendant to the plaintiff; (2) a breach of that duty; and (3) an
injury which was proximately caused by the breach of the duty (Brandy B. Eden Cent. School
Disti, 15 N.Y.2d 297 [2010]; Akins v. Glen Falls City School Dist., 53 N.Y.2d 325 [1981]; Pulka
v. Edelman, 40 N.Y.2d 781 [1976]).
21. Plaintiff’s negligence claims against La Hacienda include a negligent touching
claim, a general negligence claim, and a negligent security/hiring and training of security claim.
Each of these claims fail for the following reasons.
a. Negligent Touching
22. Beginning with Plaintiff’s “negligent touching” claim, La Hacienda must be
awarded summary judgment on this claim because negligent touching is not a recognized cause
of action in New York State. As such, and even setting aside that the evidence on the record
demonstrates that La Hacienda did not come into contact with Plaintiff, La Hacienda is entitled
to summary judgment on this claim to the extent it is not recognized in New York.
b. General Negligence
23. Turning to Plaintiff’s general negligence claim, La Hacienda must be awarded
summary judgment on this claim as well because La Hacienda did not have prior notice of any
prior fights at the restaurant or of any indication that the person that allegedly struck Plaintiff,
Mr. Walter Garcia, posed a threat and, therefore, had no duty to protect Plaintiff.
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24. “Possessors of land have a ‘duty to control the conduct of third person on their
premises when they have the opportunity to control such persons and are reasonably aware of
the need for such control’” (Zhi Eric Zhang v. ABC Corp., 194 A.D.3d 990, 991 [2nd Dept. 2021],
quoting Pink v. Rome Youth Hockey Assn., Inc., 28 N.Y.3d 994, 997-998 [2016]; D’Amico v.
Christie, 71 N.Y.2d 76, 85 [1987]). “‘The scope of the possessor’s duty is defined by past
experience and the likelihood of conduct on the part of third persons which is likely to endanger
the safety of the visitor’” (Zhi Eric Zhang at 991, quoting Maheshwari v. City of New York, 2
N.Y.3d 288, 294 [2004]; see also, Lindskog v. Southland Restaurant, Inc., 160 A.D.2d 842 [2nd
Dept. 1990]). “‘To establish that criminal acts were foreseeable, the criminal conduct at issue
must be shown to be reasonably predictable based on the prior occurrence of the same or similar
criminal activity at a location sufficiently proximate to the subject location’” (Zhi Eric Zhang at
991-992, quoting Gentile v. Town & Vil. Of Harrison, N.Y., 137 A.D.3d 971-972 [2nd Dept.
2016]). “‘The owner of a public establishment has no duty to protect patrons against
unforeseeable and unexpected assaults’” (Zhi Eric Zhang at 992, quoting Bisignano v. Raabe,
128 A.D.3d 751, 752 [2nd Dept. 2015]).
25. In this case, La Hacienda did not have notice of any prior fights at the restaurant or
of any conduct particular to the third-party, Mr. Garcia, who Plaintiff claims struck him.
Furthermore, not only did La Hacienda and/or its landlord, 1620 New York Ave, not recall a
single prior fight at the restaurant, but Plaintiff himself admitted that he never witnessed a prior
fight at La Hacienda (Exhibit E at 18: 3-8; Exhibit F at 18: 17-20; Exhibit G at 7: 8-15, 12: 7-
10). Accordingly, because it is uncontested that La Hacienda did not have prior notice of any
prior fights or conduct pertaining to Mr. Garcia, La Hacienda had no duty to protect Plaintiff
from the unforeseeable and unexpected fight that Plaintiff was involved in (see Zhi Eric Zhang
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at 992). Therefore, La Hacienda must be awarded summary judgment on Plaintiff’s general
negligence claim.
26. For example, in Lindskog v. Southland Restaurant Inc., 160 A.D.2d 842 (2nd Dept.
1990), a patron was allegedly assaulted by an unidentified person shortly after he walked into
the men’s room of the defendant’s restaurant. The patron was struck in the head with a bottle by
the unidentified person and stabbed in the neck. In reversing the lower Court and granting
summary to the defendant-restaurant, the Second Department held that such an unexpected
altercation between patrons was not a situation which could reasonably be expected to be
anticipated or prevented. The Second Department further reasoned that the mere fact that a
single similar incident occurred five (5) months prior could not establish that the defendant-
restaurant owed a duty to protect the plaintiff against such an unexpected event. For the same
reasons the defendant-restaurant was awarded summary judgment in Lindskog, La Hacienda
must be awarded summary judgment. In this case, Plaintiff, La Hacienda and 1620 New York
Ave all agree that they were unaware of any prior fights at the bar. Thus, when “all of the sudden,
a fight arose”, which involved Plaintiff and his friends, La Hacienda did not have any duty to
protect Plaintiff. Therefore, La Hacienda is entitled to summary judgment on Plaintiff’s general
negligence claim.
27. A similar outcome was reached in Petras v. Saci, Inc., 18 A.D.3d 848 (2nd Dept.
2005) when a patron was assaulted by two (2) unknown assailants at a defendant’s nightclub in
Manhattan. Like Lindskog, in Petras the Second Department found that because the plaintiff
was injured as the result of a sudden and unexpected altercation by unidentified assailants which
the defendant-restaurant could not have reasonably anticipated or prevented, the defendant-
restaurant was entitled to summary judgment on the plaintiff’s claims against it. The same facts
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are present in this case and, based on the undisputed facts, La Hacienda could not have
reasonably anticipated or prevented the fight involving Plaintiff from occurring. Accordingly,
La Hacienda is entitled to summary judgment.
28. Finally, consider the case Garofalo v. Henrietta Italia, Inc., 172 A.D.2d 580 (4th
Dept. 1991). In Garofalo, the plaintiff brought a claim against the restaurant and the assailant,
Schneider, after a fight at the restaurant. In affirming summary judgment to the restaurant, the
Fourth Department held that the restaurant could not reasonably be expected to have anticipated
or prevented the fight because, prior to the altercation with the plaintiff, Schneider “gave no
indication that he posed a threat to any of its patrons” (Garofalo at 580). Again, the same facts
are present in this case. Not only did La Hacienda have no prior notice of any prior fights at the
restaurant, but La Hacienda had no reason to expect that the person that Plaintiff claims struck
him during the altercation, Mr. Garcia, described by La Hacienda as a “very calm man”, posed
a threat to any of its patrons (Exhibit F at 27: 13-16). As such, La Hacienda is entitled to
summary judgment on Plaintiff’s negligence claim.
c. Negligent Security
29. Lastly, for the same reasons that La Hacienda is entitled to summary judgment on
Plaintiff’s general negligence claim, La Hacienda is entitled to summary judgment on Plaintiff’s
negligence claim premised upon negligent security and/or failing to hire and train its staff to
provide security.
30. The analysis for a claim premised on negligent hiring, is identical to the general
analysis set forth in (II)(b), above. Namely, that the scope of the possessor’s duty is defined by
past experience and the likelihood of conduct on the part of third persons which is likely to
endanger the safety of the visitor, and that the owner of a public establishment has no duty to
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protect patrons against unforeseeable and unexpected assaults (Zhi Eric Zhang at 991-992; see
also, Ishmail v. ATM Three, LLC, 77 A.D.3d 790 [2nd Dept. 2010]).
31. As demonstrated above, La Hacienda had no duty to protect Plaintiff, including
hiring or maintaining security for Plaintiff’s protection, from the unforeseeable and unexpected
fight involving Plaintiff. Accordingly, La Hacienda is entitled to summary judgment on
Plaintiff’s negligent hiring claim.
32. Furthermore, the evidence on the record demonstrates that La Hacienda actually
maintained security for its restaurant and always had between (2) to three (3) security guards
working on a given night, including on the night of the alleged fight. This is conceded by
Plaintiff (Exhibit E at 17: 18-23, 26: 3-7). In fact, when the fight involving Plaintiff occurred,
security responded to the fight immediately, broke it up and closed the bar (Exhibit E at 38-39:
25-8, Exhibit F at: 16: 22-24, 21: 9-15). Accordingly, notwithstanding that La Hacienda is
entitled to summary judgment because it had no duty to protect or maintain security to protect
Plaintiff inasmuch as it did not have prior notice of the unforeseeable and unexpected fight
involving Plaintiff, the evidence further demonstrates that La Hacienda maintained reasonable
security for its restaurant.
III. LA HACIENDA IS ENTITLED TO SUMMARY JUDGMENT DISMISSING
PLAINTIFF’S COMPLAINT AS THERE IS NO EVIDENCE THAT LA HACIENDA
SOLD ALCOHOLIC BEVERAGES TO MR. GARCIA WHILE HE WAS VISIBLY
INTOXICATED
33. To establish a cause of action under General Obligations Law §11-101, known as
the Dram Shop Act, plaintiff must demonstrate that the defendant sold alcohol to a patron who
appeared visibly intoxicated at the time of the sale (Pinilla v. City of New York, 136 A.D.3d 774,
776-777 [2d Dep’t 2016]; Flynn v. Bulldogs Run Corp., 171 A.D.3d 1136 [2d Dep’t 2019]; Wenz
v. Harbor Crab Co. Restaurant & Mar., 2019 NY Slip Op 32696 [Sup. Ct. Suffolk County 2019];
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Romano v. Stanley, 90 N.Y.2d 444 [1997]; Soler v. Jaccarino, 189 A.D.3d 1106 [2d Dep’t
2020]). Establishing that a patron appeared intoxicated while present at, or when leaving
defendant’s establishment, is insufficient to show that the patron was visibly intoxicated at the
specific time of sale of the alcoholic beverages (Nekme v. Joseph, 160 A.D.2d 915, 554 [2d Dep’t
1990]; Trigoso v. Correa, 150 A.D. 3d 1041 [2d Dep’t 2017]).
34. Moreover, the “visibly intoxicated” standard was designed to “limit the tavern
keeper’s exposure and to preclude the imposition of a regulatory or monetary penalty when he
or she had no reasonable basis for knowing that the consumer was intoxicated” (Romano v.
Stanley, 90 N.Y.2d 444 [1997]). Thus, mere proof of alcohol consumption is not enough to
defeat a motion for summary judgment (Pizzaro v. City of New York, 188 A.D.2d 591 [2d Dep’t
1992] [that a patron was observed with one beer and one shot of alcohol was insufficient to raise
issues that he was served unlawfully by the bar]).
35. New York courts have even held that the number of drinks or forensic evidence of
a high blood alcohol count alone cannot establish that a patron was visibly intoxicated under the
Dram Shop Act, as permitting blood and urine alcohol content to serve as an automatic substitute
for perceptible intoxication counters the legislative goal of requiring the server to have actual
knowledge of the patron’s state at the time of the sale (Romano v. Stanley, 90 N.Y.2d 444
[1997]). Additionally, it is well settled that the effects of alcohol consumption vary greatly from
person to person (Id.; Csizmadia v. Town of Webb, 289 A.D.2d 584 [3d Dep’t 2001] [evidence
that a patron was served four drinks in an hour was insufficient to raise a triable issue of fact in
opposition to a motion for summary judgment, as the effects of alcohol consumption differ
greatly from person to person]).
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36. In the case at bar, there is absolutely no evidence that Mr. Garcia was visibly
intoxicated when he was allegedly involved in a fight with Plaintiff. The only evidence as to
intoxication is that Plaintiff claims to have seen Mr. Garcia being served around three (3) to five
(5) drinks. He further noted that Mr. Garcia was slurring his words (see Exhibit E at 32: 12-20).
However, Plaintiff testified that he had never met Mr. Garcia prior to the date of the incident
(Exhibit E at: 21: 7-12). Based on the case law cited above, this fact alone would be insufficient
to establish that Mr. Garcia was visibly intoxicated. Even more importantly, itwould not be
evidence that Mr. Garcia was visibly intoxicated and served with alcohol in such state.
37. Plaintiff’s only other possible argument that Mr. Garcia was intoxicated would be
that the aggression was committed unprovoked. However, such claim would amount to nothing
more than a claim that the alleged fight, in and of itself, raises issues of intoxication. Expectedly,
this circular form of reasoning has been rejected (see Goyea v. Folger, 133 A.D.2d 965 [3d Dep’t
1987]). Plaintiff’s claims, at best, only raise issues of the possibility that Mr. Garcia exhibited
signs of visible intoxication when the fight occurred, which would not be legally sufficient
evidence that Mr. Garcia exhibited such signs at the time of the bartender’s service.
38. Mr. Angel Sorto, the owner of La Hacienda, testified that he witnessed the subject
incident and denies that any of the individuals who were involved displayed visible signs of
intoxication (Exhibit F at: 17: 4-7). Mr. Soto further testified that La Hacienda has rules and
procedures in place to cease the sale of alcohol to any patrons who exhibit signs of being visibly
intoxicated (Exhibit E at: 17: 22-25, 18: 2-8).
39. As noted above, Plaintiff must present evidence that Mr. Garcia was visibly
intoxicated at the time of sale of alcohol in order to establish a Dram Shop violation. Conclusory
and unsubstantiated claims of intoxication are insufficient to create triable issues of fact (Languili
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v. Argonaut Restaurant and Diner Inc., 232 A.D.2d 375 [2d Dep’t 1996]). Even if Plaintiff’s
testimony were argued to create an issue of fact as to whether Mr. Garcia was intoxicated at the
time of the fight, Plaintiff’s claims stilllack a concrete basis evidencing that Mr. Garcia was
served with alcohol while in a visibly intoxicated state. The mere contention that Mr. Garcia was
visibly intoxicated at the time of the fight scarcely follows that he was served with alcohol in
such state. Establishing that Mr. Garcia was visibly intoxicated at the time of the fight would
be, on its own, insufficient to raise a question of fact as to the level of intoxication when served
with alcohol at La Hacienda’s premises (see Flynn v. Bulldogs Run Corp., 171 A.D.3d 1136 [2d
Dep’t 2019]). Ultimately, Plaintiff would not only need to show that Mr. Garcia was intoxicated
while at the La Hacienda’s establishment, but that employees of the establishment served Mr.
Garcia with alcohol while he was visibly intoxicated (see id.; Soler v. Jaccarino, 189 A.D.3d
1106 [2d Dep’t 2020]; Trigoso v. Correa, 150 A.D.3d 1041 [2d Dep’t 2017]; see also Pizzaro v.
City of New York, 188 A.D.2d 591 [2d Dep’t 1992]). Thus, even operating under the assumption
that Mr. Garcia was visibly intoxicated at the time he allegedly struck Plaintiff, again, no
evidence has been established for the record to show that Mr. Garcia manifested any signs of
intoxication when he was served with alcoholic beverages.
40. In Soler v. Jaccarino, 189 A.D.3d 1106 (2d Dep’t 2020), the defendants submitted
a transcript of the deposition testimony of one of the bartenders who was working at the
defendants’ restaurant on the night of the subject assault. There, the Appellate Division, Second
Department upheld the lower Court’s ruling that the transcript was sufficient to prima facie
establish that the defendants did not serve alcohol to the subject patron while he was visibly
intoxicated, and that plaintiff failed to raise a triable issue of fact in opposition. Id.
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41. In Trigoso v. Correa, 150 A.D.3d 1041 (2d Dep’t 2017), the Appellate Division,
Second Department held that the lower Court properly determined that the defendant, a
restaurant, met its prima facie burden by demonstrating through deposition testimony of the
restaurant owner that the subject patron was not visibly intoxicated at the time he was served
alcohol. However, in Trigoso, the plaintiff, in opposition, submitted a transcript of the driver’s
plea of “guilty to aggravated driving while intoxicated” as well as a police report from after the
incident, which noted that the driver was “observed to be intoxicated and placed under arrest”
(Id.). Thus, the Court held that the plaintiff’s contentions held merit and raised a triable issue of
fact (id.).
42. The Court similarly held in Sherwood v. Otto Jazz, Inc., 142 A.D.3d 1160 (2d Dep’t
2016), that the defendant met its initial burden of establishing that the subject patron was not
visibly intoxicated when he was served, through the submission of the bartender’s deposition
testimony which stated that the patron was not visibly intoxicated at the time of service.
However, the plaintiff was able to raise a triable issue of fact by submitting: (1) the transcript of
the patron’s guilty plea in a related criminal action for aggravated driving while intoxicated; (2)
the patron’s admittance at the plea proceeding that he drank at least thirteen beers and seven
shots of Jack Daniels prior to the happening of the incident; and (3) a verified statement from
the officer who arrested the patron after the incident which stated that the patron exhibited signs
of intoxication.
43. Here, in the case at bar, unlike the plaintiffs in Trigoso and Sherwood, Plaintiff has
not submitted evidence to raise any triable issue of fact. Simply stated, absolutely absent from
the record in the instant matter is any evidence to establish that Mr. Garcia, even if it were
assumed that he was intoxicated when he allegedly struck Plaintiff, manifested any signs of
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visible intoxication when he purchased alcoholic beverages from La Hacienda. As such, there
is only unsubstantiated speculation that Mr. Garcia, whom Plaintiff testified to have never met,
was ever served by La Hacienda while visibly intoxicated.
CONCLUSION
44. La Hacienda must be awarded summary judgment on all claims and crossclaims
against them because the evidence demonstrates that it was not negligent and did not assault
and/or batter Plaintiff. The evidence further demonstrates that La Hacienda is entitled to
summary judgment on Plaintiff’s Dram Shop claim.
WHEREFORE, the defendant, LA HACIENDA, respectfully request that the Court grant
this motion in its entirety, and for such other relief that the Court deems just and proper.
Dated: Mineola, New York
December 12, 2022
CUOMO LLC
/s/ Steven R. Engrassia /s/
By:
STEVEN R. ENGRASSIA, ESQ.
Attorneys for Defendant
1624 EL MILAGRO CORP.,
d/b/a LA HACIENDA RESTAURANT
200 Old Country Road, Suite 2 South
Mineola, NY 11501
(516) 741-3222
MARKS, O’NEILL, O’BRIEN
DOHERTY & KELLY, P.C.
/s/ Amanda N. Chiarello
By:
AMANDA N. CHIARELLO
Attorneys for Defendant
1624 EL MILAGRO CORP.,
d/b/a LA HACIENDA RESTAURANT
600 Third Avenue, Suite 1501
New York, New York 10016
(212) 967- 0080
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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ALEXANDER PONCE,
AFFIRMATION OF
Plaintiff, COMPLIANCE WITH
WORD COUNT LIMIT
-against- PURSUANT TO UNIFORM
RULE 202.8-b
LA HACIENDA RESTAURANT CORP., LA HACIENDA
RESTAURANT, 1620 NEW YORK AVENUE LLC
and JOHN DOES 1-5 (A Fictitious Name for Employees Index No.: 605868/2020
and/or Patrons of La Hacienda Restaurant),
Defendants.
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The undersigned, an attorney admitted to practice in this State, affirms the following under
penalties of perjury:
(1) I am the attorney for the defendant, LA HACIENDA RESTAURANT.
(2) Defendants have submitted a Motion for Summary Judgment
(3) Defendants have complied with Uniform Civil Rule 202.8-b regarding the word
count for its motion, as follows:
(a) Affirmation in Opposition: 4073
Dated: Mineola, New York
December 12, 2022
CUOMO LLC
/s/ Steven R. Engrassia /s/
By:
STEVEN R. ENGRASSIA, ESQ.
Attorneys for Defendant
1624 EL MILAGRO CORP.,
d/b/a LA HACIENDA RESTAURANT
200 Old Country Road, Suite 2 South
Mineola, NY 11501
(516) 741-3222
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FILED: SUFFOLK COUNTY CLERK 12/12/2022 06:13 PM INDEX NO. 605868/2020
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/12/2022
MARKS, O’NEILL, O’BRIEN
DOHERTY & KELLY, P.C.
/s/ Amanda N. Chiarello
By:
AMANDA N. CHIARELLO
Attorneys for Defendant
1624 EL MILAGRO CORP.,
d/b/a LA HACIENDA RESTAURANT
600 Third Avenue, Suite 1501
New York, New York 10016
(212) 967- 0080
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Preview
FILED: SUFFOLK COUNTY CLERK 12/12/2022 06:13 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/12/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -----------------------------------------------------------------------------X ALEXANDER PONCE, AFFIRMATION IN Plaintiff, SUPPORT -against- LA HACIENDA RESTAURANT CORP., LA HACIENDA RESTAURANT, 1620 NEW YORK AVENUE LLC and JOHN DOES 1-5 (A Fictitious Name for Employees Index No.: 605868/2020 and/or Patrons of La Hacienda Restaurant), Defendants. -------------------------------------------------------------------------------X STEVEN R. ENGRASSIA and AMANDA N. CHIARELLO, attorneys duly admitted to practice law before all the Courts of the State of New York, affirms the following under penalties of perjury. 1. We are associates of the law firms CUOMO LLC and MARKS, O’NEILL, O’BRIEN, DOHERTY & KELLY, P.C., respectively, attorneys for the defendant, 1624 EL MILAGRO CORP. d/b/a LA HACIENDA RESTAURANT (La Hacienda), in the above- captioned matter and are fully familiar with the facts and circumstances heretofore had herein, except as to those matters stated to be upon information and belief, and as to those matters, which we believe to be true, the sources of our information and the grounds for our belief are conversations and communications with our client and a review of the contents of our file. 2. We submit this affirmation in support of La Hacienda’s motion for summary judgment on the basis that La Hacienda was not negligent or otherwise the cause of Plaintiff’s alleged injuries and that La Hacienda did not violate General Obligations Law § 11-101. 3. This action arises of an alleged fight that took place on September 1, 2019 at La Hacienda Restaurant, located at 1624 New York Avenue, Huntington Station, New York. 1 of 16 FILED: SUFFOLK COUNTY CLERK 12/12/2022 06:13 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/12/2022 PROCEDURAL HISTORY 4. Plaintiff, Alexander Ponce, commenced this action with the filing of the Summons and Complaint on May 27, 2020. A copy of Plaintiff’s Summons and Complaint is annexed hereto as Exhibit “A”. 5. On or about August 7, 2020, La Hacienda interposed its Verified Answer to the Complaint. A copy of La Hacienda’s Verified Answer is annexed hereto as Exhibit “B”. 6. On or about September 22, 2020, 1620 New York Avenue LLC (1620 New York) interposed its Answer to the Complaint. A copy of 1620 New York’s Answer is annexed hereto as Exhibit “C”. 7. On or about August 24, 2020, Plaintiff exchanged a Bill of Particulars. A copy of the Bill of Particulars is annexed hereto as Exhibit “D”. 8. Thereafter, Plaintiff appeared for a deposition on or about August 4, 2021. A copy of Plaintiff’s deposition transcript is annexed hereto as Exhibit “E”. 9. On or about November 1, 2021, Mr. Angel Sorto, on behalf of La Hacienda, appeared for a deposition. A copy of Mr. Sorto’s deposition transcript is annexed hereto as Exhibit “F”. 10. On or about June 10, 2022, Mr. Arman Mehrara, on behalf of 1620 New York, appeared for a deposition. A copy of Mr. Mehrara’s deposition transcript is annexed hereto as “Exhibit “G”. 11. Following the completion of discovery, Plaintiff filed the Note of Issue and Certificate of Readiness on August 15, 2022. Pursuant to the Compliance Conference Order filed together with the Note of Issue, any motions for summary judgment are to be made within one-hundred-and-twenty (120) days following the filing of the Note of Issue. A copy of the Note 2 of 16 FILED: SUFFOLK COUNTY CLERK 12/12/2022 06:13 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/12/2022 of Issue and Certificate of Readiness is annexed hereto as Exhibit “H”. Accordingly, this motion is timely. STATEMENT OF FACTS 12. Please see La Hacienda’s Statement of Material Facts. ARGUMENT 13. The proponent of a motion for summary judgment must merely make a prima facie case showing his entitlement to the judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact from the case (see Weingrad. New York Univ. and Med. Ctr., 64 N.Y.2d 851 [1985]; see also Amedure v. Standard Furniture Co., 125 A.D.2d 170 [3d Dept. 1987]). 14. Once the movant has satisfied this burden, it is incumbent on the party in opposition to the motion to assemble and lay bare affirmative proof to establish that a genuine issue of fact exists (see Trials West, Inc. v. Wolff, 32 N.Y.2d 207 [1973]). 15. The proof offered to raise a triable issue of fact must be in admissible form (see Vermette v. Kenworth Truck Co., 68 N.Y.2d 717, 717 [1986]). Bald and conclusory allegations are not enough to defeat a motion for summary judgment (see S.J. Capelin Assoc., Inc., v. Globe Mfg. Corp., 34 N.Y.2d 338 [1974]). A motion for summary judgment should be granted when the proof tendered by the party in opposition to the motion is comprised of mere conclusions, expressions of hope or unsubstantiated allegations or assertions (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]). 16. Plaintiff’s Complaint alleges eight (8) causes of action that boil down to three (3) separate claims: (1) an assault and battery claim; (2) a negligence claim; and (3) a Dram Shop claim. These three (3) claims will be addressed separately. 3 of 16 FILED: SUFFOLK COUNTY CLERK 12/12/2022 06:13 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/12/2022 I. LA HACIENDA IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S ASSAULT AND BATTERY CLAIM BECAUSE THERE IS NO EVIDENCE THAT PLAINTIFF WAS ASSAULTED OR BATTERED BY ANYONE FROM LA HACIENDA 17. “In order to sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful conduct” (Timothy Mc. V. Beacon City Sch. Dist., 127 A.D.3d 826, 829 [2nd Dept. 2015]; see also, Gabriel v. Scheriff, 115 A.D.3d 791, 792 [2014]; Fugazy v. Corbetta, 34 A.D.3d 728, 729 [2006]; Cotter v. Summit Sec. Servs. Inc., 14 A.D.3d 475, [2005]; Bastein v. Sotto, 299 A.D.2d 432, 433 [2002]). 18. To recover for a claim of battery, a Plaintiff must prove that there was a bodily contact, made with intent, that was offensive in nature (Cerilli v. Kezis, 16 A.D.3d 363, 364 [2nd Dept. 2005]; Siegell v. Herricks Union, 7 A.D.3d 607, 609 [2004]). The intent “required for battery is ‘intent to cause a bodily contact that a reasonable person would find offensive’” (Cerilli, quoting Jeffreys v. Griffin, 1 N.Y.3d 34, 41 n2 [2003]). 19. In this case, the record is devoid of any evidence that anyone from La Hacienda threated to, intended to, or actually contacted Plaintiff. The third-party that allegedly struck Plaintiff during the fight was another patron of La Hacienda. In fact, once the fight involving Plaintiff broke out, La Hacienda took immediate steps to stop it. There is simply no evidence that La Hacienda, including any of its employees, intended to or actually contacted Plaintiff in any way whatsoever. Accordingly, La Hacienda is entitled to summary judgment on Plaintiff’s assault and battery claim. 4 of 16 FILED: SUFFOLK COUNTY CLERK 12/12/2022 06:13 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/12/2022 II. THE EVIDENCE ON THE RECORD DEMONSTRATES THAT LA HACIENDA IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S NEGLIGENCE CLAIMS BECAUSE IT IS UNDISPUTED THAT LA HACIENDA WAS NOT NEGLIGENT AND NOT A PROXIMATE CAUSE OF THE OCCURRENCE 20. It is well-established law in New York State that there are three elements which must be present for a plaintiff to recover from a defendant in tort. These elements are: (1) the existence of a legal duty from the defendant to the plaintiff; (2) a breach of that duty; and (3) an injury which was proximately caused by the breach of the duty (Brandy B. Eden Cent. School Disti, 15 N.Y.2d 297 [2010]; Akins v. Glen Falls City School Dist., 53 N.Y.2d 325 [1981]; Pulka v. Edelman, 40 N.Y.2d 781 [1976]). 21. Plaintiff’s negligence claims against La Hacienda include a negligent touching claim, a general negligence claim, and a negligent security/hiring and training of security claim. Each of these claims fail for the following reasons. a. Negligent Touching 22. Beginning with Plaintiff’s “negligent touching” claim, La Hacienda must be awarded summary judgment on this claim because negligent touching is not a recognized cause of action in New York State. As such, and even setting aside that the evidence on the record demonstrates that La Hacienda did not come into contact with Plaintiff, La Hacienda is entitled to summary judgment on this claim to the extent it is not recognized in New York. b. General Negligence 23. Turning to Plaintiff’s general negligence claim, La Hacienda must be awarded summary judgment on this claim as well because La Hacienda did not have prior notice of any prior fights at the restaurant or of any indication that the person that allegedly struck Plaintiff, Mr. Walter Garcia, posed a threat and, therefore, had no duty to protect Plaintiff. 5 of 16 FILED: SUFFOLK COUNTY CLERK 12/12/2022 06:13 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/12/2022 24. “Possessors of land have a ‘duty to control the conduct of third person on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control’” (Zhi Eric Zhang v. ABC Corp., 194 A.D.3d 990, 991 [2nd Dept. 2021], quoting Pink v. Rome Youth Hockey Assn., Inc., 28 N.Y.3d 994, 997-998 [2016]; D’Amico v. Christie, 71 N.Y.2d 76, 85 [1987]). “‘The scope of the possessor’s duty is defined by past experience and the likelihood of conduct on the part of third persons which is likely to endanger the safety of the visitor’” (Zhi Eric Zhang at 991, quoting Maheshwari v. City of New York, 2 N.Y.3d 288, 294 [2004]; see also, Lindskog v. Southland Restaurant, Inc., 160 A.D.2d 842 [2nd Dept. 1990]). “‘To establish that criminal acts were foreseeable, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location’” (Zhi Eric Zhang at 991-992, quoting Gentile v. Town & Vil. Of Harrison, N.Y., 137 A.D.3d 971-972 [2nd Dept. 2016]). “‘The owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults’” (Zhi Eric Zhang at 992, quoting Bisignano v. Raabe, 128 A.D.3d 751, 752 [2nd Dept. 2015]). 25. In this case, La Hacienda did not have notice of any prior fights at the restaurant or of any conduct particular to the third-party, Mr. Garcia, who Plaintiff claims struck him. Furthermore, not only did La Hacienda and/or its landlord, 1620 New York Ave, not recall a single prior fight at the restaurant, but Plaintiff himself admitted that he never witnessed a prior fight at La Hacienda (Exhibit E at 18: 3-8; Exhibit F at 18: 17-20; Exhibit G at 7: 8-15, 12: 7- 10). Accordingly, because it is uncontested that La Hacienda did not have prior notice of any prior fights or conduct pertaining to Mr. Garcia, La Hacienda had no duty to protect Plaintiff from the unforeseeable and unexpected fight that Plaintiff was involved in (see Zhi Eric Zhang 6 of 16 FILED: SUFFOLK COUNTY CLERK 12/12/2022 06:13 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/12/2022 at 992). Therefore, La Hacienda must be awarded summary judgment on Plaintiff’s general negligence claim. 26. For example, in Lindskog v. Southland Restaurant Inc., 160 A.D.2d 842 (2nd Dept. 1990), a patron was allegedly assaulted by an unidentified person shortly after he walked into the men’s room of the defendant’s restaurant. The patron was struck in the head with a bottle by the unidentified person and stabbed in the neck. In reversing the lower Court and granting summary to the defendant-restaurant, the Second Department held that such an unexpected altercation between patrons was not a situation which could reasonably be expected to be anticipated or prevented. The Second Department further reasoned that the mere fact that a single similar incident occurred five (5) months prior could not establish that the defendant- restaurant owed a duty to protect the plaintiff against such an unexpected event. For the same reasons the defendant-restaurant was awarded summary judgment in Lindskog, La Hacienda must be awarded summary judgment. In this case, Plaintiff, La Hacienda and 1620 New York Ave all agree that they were unaware of any prior fights at the bar. Thus, when “all of the sudden, a fight arose”, which involved Plaintiff and his friends, La Hacienda did not have any duty to protect Plaintiff. Therefore, La Hacienda is entitled to summary judgment on Plaintiff’s general negligence claim. 27. A similar outcome was reached in Petras v. Saci, Inc., 18 A.D.3d 848 (2nd Dept. 2005) when a patron was assaulted by two (2) unknown assailants at a defendant’s nightclub in Manhattan. Like Lindskog, in Petras the Second Department found that because the plaintiff was injured as the result of a sudden and unexpected altercation by unidentified assailants which the defendant-restaurant could not have reasonably anticipated or prevented, the defendant- restaurant was entitled to summary judgment on the plaintiff’s claims against it. The same facts 7 of 16 FILED: SUFFOLK COUNTY CLERK 12/12/2022 06:13 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/12/2022 are present in this case and, based on the undisputed facts, La Hacienda could not have reasonably anticipated or prevented the fight involving Plaintiff from occurring. Accordingly, La Hacienda is entitled to summary judgment. 28. Finally, consider the case Garofalo v. Henrietta Italia, Inc., 172 A.D.2d 580 (4th Dept. 1991). In Garofalo, the plaintiff brought a claim against the restaurant and the assailant, Schneider, after a fight at the restaurant. In affirming summary judgment to the restaurant, the Fourth Department held that the restaurant could not reasonably be expected to have anticipated or prevented the fight because, prior to the altercation with the plaintiff, Schneider “gave no indication that he posed a threat to any of its patrons” (Garofalo at 580). Again, the same facts are present in this case. Not only did La Hacienda have no prior notice of any prior fights at the restaurant, but La Hacienda had no reason to expect that the person that Plaintiff claims struck him during the altercation, Mr. Garcia, described by La Hacienda as a “very calm man”, posed a threat to any of its patrons (Exhibit F at 27: 13-16). As such, La Hacienda is entitled to summary judgment on Plaintiff’s negligence claim. c. Negligent Security 29. Lastly, for the same reasons that La Hacienda is entitled to summary judgment on Plaintiff’s general negligence claim, La Hacienda is entitled to summary judgment on Plaintiff’s negligence claim premised upon negligent security and/or failing to hire and train its staff to provide security. 30. The analysis for a claim premised on negligent hiring, is identical to the general analysis set forth in (II)(b), above. Namely, that the scope of the possessor’s duty is defined by past experience and the likelihood of conduct on the part of third persons which is likely to endanger the safety of the visitor, and that the owner of a public establishment has no duty to 8 of 16 FILED: SUFFOLK COUNTY CLERK 12/12/2022 06:13 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/12/2022 protect patrons against unforeseeable and unexpected assaults (Zhi Eric Zhang at 991-992; see also, Ishmail v. ATM Three, LLC, 77 A.D.3d 790 [2nd Dept. 2010]). 31. As demonstrated above, La Hacienda had no duty to protect Plaintiff, including hiring or maintaining security for Plaintiff’s protection, from the unforeseeable and unexpected fight involving Plaintiff. Accordingly, La Hacienda is entitled to summary judgment on Plaintiff’s negligent hiring claim. 32. Furthermore, the evidence on the record demonstrates that La Hacienda actually maintained security for its restaurant and always had between (2) to three (3) security guards working on a given night, including on the night of the alleged fight. This is conceded by Plaintiff (Exhibit E at 17: 18-23, 26: 3-7). In fact, when the fight involving Plaintiff occurred, security responded to the fight immediately, broke it up and closed the bar (Exhibit E at 38-39: 25-8, Exhibit F at: 16: 22-24, 21: 9-15). Accordingly, notwithstanding that La Hacienda is entitled to summary judgment because it had no duty to protect or maintain security to protect Plaintiff inasmuch as it did not have prior notice of the unforeseeable and unexpected fight involving Plaintiff, the evidence further demonstrates that La Hacienda maintained reasonable security for its restaurant. III. LA HACIENDA IS ENTITLED TO SUMMARY JUDGMENT DISMISSING PLAINTIFF’S COMPLAINT AS THERE IS NO EVIDENCE THAT LA HACIENDA SOLD ALCOHOLIC BEVERAGES TO MR. GARCIA WHILE HE WAS VISIBLY INTOXICATED 33. To establish a cause of action under General Obligations Law §11-101, known as the Dram Shop Act, plaintiff must demonstrate that the defendant sold alcohol to a patron who appeared visibly intoxicated at the time of the sale (Pinilla v. City of New York, 136 A.D.3d 774, 776-777 [2d Dep’t 2016]; Flynn v. Bulldogs Run Corp., 171 A.D.3d 1136 [2d Dep’t 2019]; Wenz v. Harbor Crab Co. Restaurant & Mar., 2019 NY Slip Op 32696 [Sup. Ct. Suffolk County 2019]; 9 of 16 FILED: SUFFOLK COUNTY CLERK 12/12/2022 06:13 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/12/2022 Romano v. Stanley, 90 N.Y.2d 444 [1997]; Soler v. Jaccarino, 189 A.D.3d 1106 [2d Dep’t 2020]). Establishing that a patron appeared intoxicated while present at, or when leaving defendant’s establishment, is insufficient to show that the patron was visibly intoxicated at the specific time of sale of the alcoholic beverages (Nekme v. Joseph, 160 A.D.2d 915, 554 [2d Dep’t 1990]; Trigoso v. Correa, 150 A.D. 3d 1041 [2d Dep’t 2017]). 34. Moreover, the “visibly intoxicated” standard was designed to “limit the tavern keeper’s exposure and to preclude the imposition of a regulatory or monetary penalty when he or she had no reasonable basis for knowing that the consumer was intoxicated” (Romano v. Stanley, 90 N.Y.2d 444 [1997]). Thus, mere proof of alcohol consumption is not enough to defeat a motion for summary judgment (Pizzaro v. City of New York, 188 A.D.2d 591 [2d Dep’t 1992] [that a patron was observed with one beer and one shot of alcohol was insufficient to raise issues that he was served unlawfully by the bar]). 35. New York courts have even held that the number of drinks or forensic evidence of a high blood alcohol count alone cannot establish that a patron was visibly intoxicated under the Dram Shop Act, as permitting blood and urine alcohol content to serve as an automatic substitute for perceptible intoxication counters the legislative goal of requiring the server to have actual knowledge of the patron’s state at the time of the sale (Romano v. Stanley, 90 N.Y.2d 444 [1997]). Additionally, it is well settled that the effects of alcohol consumption vary greatly from person to person (Id.; Csizmadia v. Town of Webb, 289 A.D.2d 584 [3d Dep’t 2001] [evidence that a patron was served four drinks in an hour was insufficient to raise a triable issue of fact in opposition to a motion for summary judgment, as the effects of alcohol consumption differ greatly from person to person]). 10 of 16 FILED: SUFFOLK COUNTY CLERK 12/12/2022 06:13 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/12/2022 36. In the case at bar, there is absolutely no evidence that Mr. Garcia was visibly intoxicated when he was allegedly involved in a fight with Plaintiff. The only evidence as to intoxication is that Plaintiff claims to have seen Mr. Garcia being served around three (3) to five (5) drinks. He further noted that Mr. Garcia was slurring his words (see Exhibit E at 32: 12-20). However, Plaintiff testified that he had never met Mr. Garcia prior to the date of the incident (Exhibit E at: 21: 7-12). Based on the case law cited above, this fact alone would be insufficient to establish that Mr. Garcia was visibly intoxicated. Even more importantly, itwould not be evidence that Mr. Garcia was visibly intoxicated and served with alcohol in such state. 37. Plaintiff’s only other possible argument that Mr. Garcia was intoxicated would be that the aggression was committed unprovoked. However, such claim would amount to nothing more than a claim that the alleged fight, in and of itself, raises issues of intoxication. Expectedly, this circular form of reasoning has been rejected (see Goyea v. Folger, 133 A.D.2d 965 [3d Dep’t 1987]). Plaintiff’s claims, at best, only raise issues of the possibility that Mr. Garcia exhibited signs of visible intoxication when the fight occurred, which would not be legally sufficient evidence that Mr. Garcia exhibited such signs at the time of the bartender’s service. 38. Mr. Angel Sorto, the owner of La Hacienda, testified that he witnessed the subject incident and denies that any of the individuals who were involved displayed visible signs of intoxication (Exhibit F at: 17: 4-7). Mr. Soto further testified that La Hacienda has rules and procedures in place to cease the sale of alcohol to any patrons who exhibit signs of being visibly intoxicated (Exhibit E at: 17: 22-25, 18: 2-8). 39. As noted above, Plaintiff must present evidence that Mr. Garcia was visibly intoxicated at the time of sale of alcohol in order to establish a Dram Shop violation. Conclusory and unsubstantiated claims of intoxication are insufficient to create triable issues of fact (Languili 11 of 16 FILED: SUFFOLK COUNTY CLERK 12/12/2022 06:13 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/12/2022 v. Argonaut Restaurant and Diner Inc., 232 A.D.2d 375 [2d Dep’t 1996]). Even if Plaintiff’s testimony were argued to create an issue of fact as to whether Mr. Garcia was intoxicated at the time of the fight, Plaintiff’s claims stilllack a concrete basis evidencing that Mr. Garcia was served with alcohol while in a visibly intoxicated state. The mere contention that Mr. Garcia was visibly intoxicated at the time of the fight scarcely follows that he was served with alcohol in such state. Establishing that Mr. Garcia was visibly intoxicated at the time of the fight would be, on its own, insufficient to raise a question of fact as to the level of intoxication when served with alcohol at La Hacienda’s premises (see Flynn v. Bulldogs Run Corp., 171 A.D.3d 1136 [2d Dep’t 2019]). Ultimately, Plaintiff would not only need to show that Mr. Garcia was intoxicated while at the La Hacienda’s establishment, but that employees of the establishment served Mr. Garcia with alcohol while he was visibly intoxicated (see id.; Soler v. Jaccarino, 189 A.D.3d 1106 [2d Dep’t 2020]; Trigoso v. Correa, 150 A.D.3d 1041 [2d Dep’t 2017]; see also Pizzaro v. City of New York, 188 A.D.2d 591 [2d Dep’t 1992]). Thus, even operating under the assumption that Mr. Garcia was visibly intoxicated at the time he allegedly struck Plaintiff, again, no evidence has been established for the record to show that Mr. Garcia manifested any signs of intoxication when he was served with alcoholic beverages. 40. In Soler v. Jaccarino, 189 A.D.3d 1106 (2d Dep’t 2020), the defendants submitted a transcript of the deposition testimony of one of the bartenders who was working at the defendants’ restaurant on the night of the subject assault. There, the Appellate Division, Second Department upheld the lower Court’s ruling that the transcript was sufficient to prima facie establish that the defendants did not serve alcohol to the subject patron while he was visibly intoxicated, and that plaintiff failed to raise a triable issue of fact in opposition. Id. 12 of 16 FILED: SUFFOLK COUNTY CLERK 12/12/2022 06:13 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/12/2022 41. In Trigoso v. Correa, 150 A.D.3d 1041 (2d Dep’t 2017), the Appellate Division, Second Department held that the lower Court properly determined that the defendant, a restaurant, met its prima facie burden by demonstrating through deposition testimony of the restaurant owner that the subject patron was not visibly intoxicated at the time he was served alcohol. However, in Trigoso, the plaintiff, in opposition, submitted a transcript of the driver’s plea of “guilty to aggravated driving while intoxicated” as well as a police report from after the incident, which noted that the driver was “observed to be intoxicated and placed under arrest” (Id.). Thus, the Court held that the plaintiff’s contentions held merit and raised a triable issue of fact (id.). 42. The Court similarly held in Sherwood v. Otto Jazz, Inc., 142 A.D.3d 1160 (2d Dep’t 2016), that the defendant met its initial burden of establishing that the subject patron was not visibly intoxicated when he was served, through the submission of the bartender’s deposition testimony which stated that the patron was not visibly intoxicated at the time of service. However, the plaintiff was able to raise a triable issue of fact by submitting: (1) the transcript of the patron’s guilty plea in a related criminal action for aggravated driving while intoxicated; (2) the patron’s admittance at the plea proceeding that he drank at least thirteen beers and seven shots of Jack Daniels prior to the happening of the incident; and (3) a verified statement from the officer who arrested the patron after the incident which stated that the patron exhibited signs of intoxication. 43. Here, in the case at bar, unlike the plaintiffs in Trigoso and Sherwood, Plaintiff has not submitted evidence to raise any triable issue of fact. Simply stated, absolutely absent from the record in the instant matter is any evidence to establish that Mr. Garcia, even if it were assumed that he was intoxicated when he allegedly struck Plaintiff, manifested any signs of 13 of 16 FILED: SUFFOLK COUNTY CLERK 12/12/2022 06:13 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/12/2022 visible intoxication when he purchased alcoholic beverages from La Hacienda. As such, there is only unsubstantiated speculation that Mr. Garcia, whom Plaintiff testified to have never met, was ever served by La Hacienda while visibly intoxicated. CONCLUSION 44. La Hacienda must be awarded summary judgment on all claims and crossclaims against them because the evidence demonstrates that it was not negligent and did not assault and/or batter Plaintiff. The evidence further demonstrates that La Hacienda is entitled to summary judgment on Plaintiff’s Dram Shop claim. WHEREFORE, the defendant, LA HACIENDA, respectfully request that the Court grant this motion in its entirety, and for such other relief that the Court deems just and proper. Dated: Mineola, New York December 12, 2022 CUOMO LLC /s/ Steven R. Engrassia /s/ By: STEVEN R. ENGRASSIA, ESQ. Attorneys for Defendant 1624 EL MILAGRO CORP., d/b/a LA HACIENDA RESTAURANT 200 Old Country Road, Suite 2 South Mineola, NY 11501 (516) 741-3222 MARKS, O’NEILL, O’BRIEN DOHERTY & KELLY, P.C. /s/ Amanda N. Chiarello By: AMANDA N. CHIARELLO Attorneys for Defendant 1624 EL MILAGRO CORP., d/b/a LA HACIENDA RESTAURANT 600 Third Avenue, Suite 1501 New York, New York 10016 (212) 967- 0080 14 of 16 FILED: SUFFOLK COUNTY CLERK 12/12/2022 06:13 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/12/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -----------------------------------------------------------------------------X ALEXANDER PONCE, AFFIRMATION OF Plaintiff, COMPLIANCE WITH WORD COUNT LIMIT -against- PURSUANT TO UNIFORM RULE 202.8-b LA HACIENDA RESTAURANT CORP., LA HACIENDA RESTAURANT, 1620 NEW YORK AVENUE LLC and JOHN DOES 1-5 (A Fictitious Name for Employees Index No.: 605868/2020 and/or Patrons of La Hacienda Restaurant), Defendants. -------------------------------------------------------------------------------X The undersigned, an attorney admitted to practice in this State, affirms the following under penalties of perjury: (1) I am the attorney for the defendant, LA HACIENDA RESTAURANT. (2) Defendants have submitted a Motion for Summary Judgment (3) Defendants have complied with Uniform Civil Rule 202.8-b regarding the word count for its motion, as follows: (a) Affirmation in Opposition: 4073 Dated: Mineola, New York December 12, 2022 CUOMO LLC /s/ Steven R. Engrassia /s/ By: STEVEN R. ENGRASSIA, ESQ. Attorneys for Defendant 1624 EL MILAGRO CORP., d/b/a LA HACIENDA RESTAURANT 200 Old Country Road, Suite 2 South Mineola, NY 11501 (516) 741-3222 15 of 16 FILED: SUFFOLK COUNTY CLERK 12/12/2022 06:13 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 12/12/2022 MARKS, O’NEILL, O’BRIEN DOHERTY & KELLY, P.C. /s/ Amanda N. Chiarello By: AMANDA N. CHIARELLO Attorneys for Defendant 1624 EL MILAGRO CORP., d/b/a LA HACIENDA RESTAURANT 600 Third Avenue, Suite 1501 New York, New York 10016 (212) 967- 0080 16 of 16