On May 27, 2020 a
Motion,Ex Parte
was filed
involving a dispute between
Alexander Ponce,
and
1620 York Avenue Llc,
John Does 1-5,
John Does
1-5,
La Hacienda Restaurant,
La Hacienda Restaurant Corp.,
for Torts - Other Negligence (INADEQUATE SECURITY)
in the District Court of Suffolk County.
Preview
FILED: SUFFOLK COUNTY CLERK 03/08/2023 03:56 PM INDEX NO. 605868/2020
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/08/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
Index No.: 605868/2020
ALEXANDER PONCE,
STATEMENT OF
Plaintiff'
MATERIAL FACTS
PURSUANT TO UNIFORM
-against-
RULES § 202.8-g
LA HACIENDA RESTAURANT CORP., LA
HACIENDA RESTAURANT, 1620 NEW YORK
AVENUE LLC and JOHN DOES 1-5 (A Fictitious Name
for Employees and/or Patrons of La Hacienda Restaurant),
Defendants.
DAVIDA. CRAVEN, an attorney duly admitted to practice law in the State of New York,
affirms the truth of the following under the penalties of perjury:
PLAINTIFF'SCOUNTERSTATEMENT OF MATERIAL FACTS
"3"
3. In addition to beer, La Hacienda sells wine and cocktails as well. Exhibit
10:14-20.
7. Plaintiff denies as misleading. Mr. Sorto did not simply testify that he was
"unaware"
if any prior fights had occurred at his establishment. When asked directly if there have
been any fights in the restaurant at any time before this incident, Mr. Sorto testified "I don't know,
remember." "3"
I don't Exhibit 18:17-20. In other words, Mr. Sorto was unable to definitively
state that no prior fights had occurred at La Hacienda prior to the subject incident.
8. Plaintiff denies as misleading. Even though Mr. Mehrara initially testified that he
was not aware of any other fights or incidents that took place at La Hacienda (Defendant LA
"G"
HACIENDA's Exhibit at pg. 12), Mr. Mehrara later testified that he was unsure if any fights
had occurred at La Hacienda prior to the subject incident. Defendant LA HACIENDA's Exhibit
1 of 5
FILED: SUFFOLK COUNTY CLERK 03/08/2023 03:56 PM INDEX NO. 605868/2020
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/08/2023
"G"
at 23:5-8. In other words, Mr. Mehrara was unable to definitively state that no prior fights had
occurred at La Hacienda prior to the subject incident.
9. Plaintiff testified that he had arrived at La Hacienda at some time after 12:00 a.m.,
al"
not at 12:00 a.m. Exhibit 22:23 to 23:4.
10. Plaintiff cannot admit or deny that Mr. Sorto arrived at La Hacienda approximately
4:00 p.m. as Plaintiff was not at La Hacienda at that time.
11. Plaintiff did not definitively testify that he consumed two (2) beers. Plaintiff was
"1"
unsure if he consumed one (1) or two (2) beers. Exhibit 25:13-14.
14. Plaintiff admits as true. In addition, Walter Garcia is also known as Jose Ortez. See
"5."
Exhibit
15. Plaintiff denies. At the time of the incident, there were 100 to 120 patrons at La
al"
Hacienda. Exhibit 26:24 to 27:2.
16. Plaintiff admits this statement is true, however Plaintiff did know who Jose Ortez
a/k/a Walter Garcia (hereinafter"Ortez") was in relation to the owner and manager of La Hacienda.
"1" "2."
Exhibit 31:23 to 32:2; Exhibit
17. Plaintiff denies that he only observed Ortez being served with only one or two
drinks. Plaintiff testified that he personally saw Ortez being served more than three drinks, and
saw the owner of La Hacienda Angel Sorto (a/k/a "Amado") personally serve Ortez with one or
al"
two of those drinks. Exhibit 32:21 to 33:6; 36:10-13. Mr. Sorto was not the only bartender at
Exhibit"3"
LaHacienda serving drinks on the night ofthe incident. 15:5-10. In addition to Ortez's
intoxication being indicated by slurred words and screaming, he was also visibly irritated and
talk." "1"
"couldn't even Exhibit 32:14-20.
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FILED: SUFFOLK COUNTY CLERK 03/08/2023 03:56 PM INDEX NO. 605868/2020
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/08/2023
19. Plaintiff is unable to admit or deny, as he was unaware of what Mr. Sorto was doing
at the time of the incident or how far away Mr. Sorto was.
"immediately"
20. Plaintiff denies that the security guards broke up the fight.
21. Plaintiff denies. It is undisputed that Ortez was the one who assaulted Plaintiff, and
remember"
Mr. Sorto allegedly did not "really exactly Ortez being involved in the fight and was
"3"
supposedly unaware of Ortez's whereabouts during the incident (Exhibit 27:17 to 28:4),
therefore there is no basis for the assertion that the individuals involved did not display any visible
signs of intoxication. On the contrary, Ortez was displaying visible signs of intoxication. Exhibit
"1" "2."
32:14-20; Exhibit
"21"
22. Plaintiff denies for the same reasons as stated in paragraph above.
23. Plaintiff denies.
PLAINTIFF'S STATEMENT OF MATERIAL FACTS
1. The man who struck Plaintiff with the bottle (Ortez) was led out through the kitchen
of the restaurant immediately after the fight by a security guard and Defendant LA HACIENDA's
al"
manager, Jose Reyes. Exhibit 27:3-6; 31:14 to 32:11.
2. Ortez was visibly intoxicated in that he was screaming inside the restaurant, slurring
"1"
his words, and despite this was still served alcoholic beverages. Exhibit 32:14-20; Exhibit
"2."
3. Ortez was already in this visibly intoxicated condition when Plaintiff first saw him
"2."
at La Hacienda. Sge Exhibit
4. Plaintiff personally saw Ortez get served at least three drinks and was one or two
al"
feet away while this was happening. Exhibit 32:21 to 33:10; 33:20-22.
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FILED: SUFFOLK COUNTY CLERK 03/08/2023 03:56 PM INDEX NO. 605868/2020
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/08/2023
5. Defendant LA HACIENDA's owner, Angel Sorto, could not describe any of the
"3"
people involved in the fight despite "keeping an eye on them."Exhibit 14:12 to 15:4.
6. Despite being at the bar and in very close proximity to the individuals involved,
Mr. Sorto claims to not know how many drinks the individuals involved in the altercation were
"3"
served or who paid for those drinks. Exhibit 16:12-18.
7. Mr. Sorto testified that he does not know and does not remember if any fights had
"3"
occurred in his bar and restaurant at any time before the subject incident. Exhibit 18:17-20.
remember"
8. Mr. Sorto did not "really exactly Ortez being involved in the incident,
but confirmed Ortez was at the bar that night, although Mr. Sorto claimed to not remember where
"3"
Ortez sat or how far away from the incident Ortez was.Exhibit 27:17 to 28:4.
9. Ortez was a close friend or relative of Defendant LA HACIENDA's manger, Jose
"2" "4;" "3"
Reyes, and its owner, Angel Sorto.SMExhibits and Exhibit 28:9 to 29:11.
10. Mr. Sorto testified that he is responsible for providing security and his manager
"3"
would pay for it. Exhibit 18:21 to 19:8.
11. At the time of the incident, there were twelve (12) video cameras inside Defendant
"3"
LA HACIENDA's bar/restaurant. Exhibit 21:16-21.
12. The subject incident was recorded by video surveillance inside Defendant LA
"3"
HACIENDA's establishment. Exhibit 22:3-24.
13. The Suffolk County Police Department investigated the incident and attempted to
get a copy of the surveillance video, however it was deleted the day after the incident. Sg Exhibit
"5."
This is contrary to Mr. Sorto's testimony that surveillance video is deleted after three weeks
"3"
Exhibit 21:22 to 22:2.
14. Plaintiff spoke to Defendant LA HACIENDA's manager, Jose Reyes, who is the
4 of 5
FILED: SUFFOLK COUNTY CLERK 03/08/2023 03:56 PM INDEX NO. 605868/2020
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/08/2023
cousin of Defendant LA HACIENDA's owner, less than three weeks after the incident and
informed Mr. Reyes that he intended to sue the establislunent because Plaintiff did not have
al" "2."
insurance and needed to pay for his medical treatment. Exhibit 55:4-10; Exhibit This
"3"
took place before Mr. Sorto claimed the surveillance video would have been deleted. Exhibit
21:22 to 22:2.
Dated: Astoria, New York
March 8, 2023
By: David A. Craven, Esq.
SACCO & FILLAS, LLP
Attorneys for Plaintif
ALEXANDER PONCE
31-19 Newtown Avenue
Seventh Floor
Astoria, New York 11102
(718) 746-3440
Our File No.: 23117-19
5 of 5
Document Filed Date
March 08, 2023
Case Filing Date
May 27, 2020
Category
Torts - Other Negligence (INADEQUATE SECURITY)
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FILED: SUFFOLK COUNTY CLERK 03/08/2023 03:56 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/08/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK Index No.: 605868/2020 ALEXANDER PONCE, STATEMENT OF Plaintiff' MATERIAL FACTS PURSUANT TO UNIFORM -against- RULES § 202.8-g LA HACIENDA RESTAURANT CORP., LA HACIENDA RESTAURANT, 1620 NEW YORK AVENUE LLC and JOHN DOES 1-5 (A Fictitious Name for Employees and/or Patrons of La Hacienda Restaurant), Defendants. DAVIDA. CRAVEN, an attorney duly admitted to practice law in the State of New York, affirms the truth of the following under the penalties of perjury: PLAINTIFF'SCOUNTERSTATEMENT OF MATERIAL FACTS "3" 3. In addition to beer, La Hacienda sells wine and cocktails as well. Exhibit 10:14-20. 7. Plaintiff denies as misleading. Mr. Sorto did not simply testify that he was "unaware" if any prior fights had occurred at his establishment. When asked directly if there have been any fights in the restaurant at any time before this incident, Mr. Sorto testified "I don't know, remember." "3" I don't Exhibit 18:17-20. In other words, Mr. Sorto was unable to definitively state that no prior fights had occurred at La Hacienda prior to the subject incident. 8. Plaintiff denies as misleading. Even though Mr. Mehrara initially testified that he was not aware of any other fights or incidents that took place at La Hacienda (Defendant LA "G" HACIENDA's Exhibit at pg. 12), Mr. Mehrara later testified that he was unsure if any fights had occurred at La Hacienda prior to the subject incident. Defendant LA HACIENDA's Exhibit 1 of 5 FILED: SUFFOLK COUNTY CLERK 03/08/2023 03:56 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/08/2023 "G" at 23:5-8. In other words, Mr. Mehrara was unable to definitively state that no prior fights had occurred at La Hacienda prior to the subject incident. 9. Plaintiff testified that he had arrived at La Hacienda at some time after 12:00 a.m., al" not at 12:00 a.m. Exhibit 22:23 to 23:4. 10. Plaintiff cannot admit or deny that Mr. Sorto arrived at La Hacienda approximately 4:00 p.m. as Plaintiff was not at La Hacienda at that time. 11. Plaintiff did not definitively testify that he consumed two (2) beers. Plaintiff was "1" unsure if he consumed one (1) or two (2) beers. Exhibit 25:13-14. 14. Plaintiff admits as true. In addition, Walter Garcia is also known as Jose Ortez. See "5." Exhibit 15. Plaintiff denies. At the time of the incident, there were 100 to 120 patrons at La al" Hacienda. Exhibit 26:24 to 27:2. 16. Plaintiff admits this statement is true, however Plaintiff did know who Jose Ortez a/k/a Walter Garcia (hereinafter"Ortez") was in relation to the owner and manager of La Hacienda. "1" "2." Exhibit 31:23 to 32:2; Exhibit 17. Plaintiff denies that he only observed Ortez being served with only one or two drinks. Plaintiff testified that he personally saw Ortez being served more than three drinks, and saw the owner of La Hacienda Angel Sorto (a/k/a "Amado") personally serve Ortez with one or al" two of those drinks. Exhibit 32:21 to 33:6; 36:10-13. Mr. Sorto was not the only bartender at Exhibit"3" LaHacienda serving drinks on the night ofthe incident. 15:5-10. In addition to Ortez's intoxication being indicated by slurred words and screaming, he was also visibly irritated and talk." "1" "couldn't even Exhibit 32:14-20. 2 of 5 FILED: SUFFOLK COUNTY CLERK 03/08/2023 03:56 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/08/2023 19. Plaintiff is unable to admit or deny, as he was unaware of what Mr. Sorto was doing at the time of the incident or how far away Mr. Sorto was. "immediately" 20. Plaintiff denies that the security guards broke up the fight. 21. Plaintiff denies. It is undisputed that Ortez was the one who assaulted Plaintiff, and remember" Mr. Sorto allegedly did not "really exactly Ortez being involved in the fight and was "3" supposedly unaware of Ortez's whereabouts during the incident (Exhibit 27:17 to 28:4), therefore there is no basis for the assertion that the individuals involved did not display any visible signs of intoxication. On the contrary, Ortez was displaying visible signs of intoxication. Exhibit "1" "2." 32:14-20; Exhibit "21" 22. Plaintiff denies for the same reasons as stated in paragraph above. 23. Plaintiff denies. PLAINTIFF'S STATEMENT OF MATERIAL FACTS 1. The man who struck Plaintiff with the bottle (Ortez) was led out through the kitchen of the restaurant immediately after the fight by a security guard and Defendant LA HACIENDA's al" manager, Jose Reyes. Exhibit 27:3-6; 31:14 to 32:11. 2. Ortez was visibly intoxicated in that he was screaming inside the restaurant, slurring "1" his words, and despite this was still served alcoholic beverages. Exhibit 32:14-20; Exhibit "2." 3. Ortez was already in this visibly intoxicated condition when Plaintiff first saw him "2." at La Hacienda. Sge Exhibit 4. Plaintiff personally saw Ortez get served at least three drinks and was one or two al" feet away while this was happening. Exhibit 32:21 to 33:10; 33:20-22. 3 of 5 FILED: SUFFOLK COUNTY CLERK 03/08/2023 03:56 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/08/2023 5. Defendant LA HACIENDA's owner, Angel Sorto, could not describe any of the "3" people involved in the fight despite "keeping an eye on them."Exhibit 14:12 to 15:4. 6. Despite being at the bar and in very close proximity to the individuals involved, Mr. Sorto claims to not know how many drinks the individuals involved in the altercation were "3" served or who paid for those drinks. Exhibit 16:12-18. 7. Mr. Sorto testified that he does not know and does not remember if any fights had "3" occurred in his bar and restaurant at any time before the subject incident. Exhibit 18:17-20. remember" 8. Mr. Sorto did not "really exactly Ortez being involved in the incident, but confirmed Ortez was at the bar that night, although Mr. Sorto claimed to not remember where "3" Ortez sat or how far away from the incident Ortez was.Exhibit 27:17 to 28:4. 9. Ortez was a close friend or relative of Defendant LA HACIENDA's manger, Jose "2" "4;" "3" Reyes, and its owner, Angel Sorto.SMExhibits and Exhibit 28:9 to 29:11. 10. Mr. Sorto testified that he is responsible for providing security and his manager "3" would pay for it. Exhibit 18:21 to 19:8. 11. At the time of the incident, there were twelve (12) video cameras inside Defendant "3" LA HACIENDA's bar/restaurant. Exhibit 21:16-21. 12. The subject incident was recorded by video surveillance inside Defendant LA "3" HACIENDA's establishment. Exhibit 22:3-24. 13. The Suffolk County Police Department investigated the incident and attempted to get a copy of the surveillance video, however it was deleted the day after the incident. Sg Exhibit "5." This is contrary to Mr. Sorto's testimony that surveillance video is deleted after three weeks "3" Exhibit 21:22 to 22:2. 14. Plaintiff spoke to Defendant LA HACIENDA's manager, Jose Reyes, who is the 4 of 5 FILED: SUFFOLK COUNTY CLERK 03/08/2023 03:56 PM INDEX NO. 605868/2020 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/08/2023 cousin of Defendant LA HACIENDA's owner, less than three weeks after the incident and informed Mr. Reyes that he intended to sue the establislunent because Plaintiff did not have al" "2." insurance and needed to pay for his medical treatment. Exhibit 55:4-10; Exhibit This "3" took place before Mr. Sorto claimed the surveillance video would have been deleted. Exhibit 21:22 to 22:2. Dated: Astoria, New York March 8, 2023 By: David A. Craven, Esq. SACCO & FILLAS, LLP Attorneys for Plaintif ALEXANDER PONCE 31-19 Newtown Avenue Seventh Floor Astoria, New York 11102 (718) 746-3440 Our File No.: 23117-19 5 of 5