Preview
FILED: DUTCHESS COUNTY CLERK 01/05/2024 04:37 PM INDEX NO. 2015-52210
NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 01/04/2024
SUPREME COURT- STATE OF NIrW YORK
DUTCHESS COUNTY
Present: Hon. THOMAS R. DAVIS. J.S.C
SUPREME COURT: DUTCHESS COUNTY
X
KENNETH GAROFOLO and JENNIFER DECISI()N ANI) ()RI)ER
GAROFOLO. (Motion Seq. #3 and #.1)
Plaintilfs
-agalnsl-
Index No.: 2015-52210
DEVIN J. CARPENTER. PREFERRED CROUP OF
MANHATTAN, INC.. CONSOLIDATED RAIL
CORPORATION and CSX TRANSPORTATION, INC..
Def-endants.
x
DEVIN J. CARPENTER.
Third-Party Plaintifl.
-agarnst-
THE LAST TRAIN STOP, INC., THE LAST TRAIN
STOP. INC. d/bia MAHONEY'S IRISH PUB &
STEAKHOUSE. P.O.K. TRAIN STATION. LLC, P.O.K.
TRAIN STATION. LLC d/b/a MAHONEY'S IRISH
PUB & STEAKHOUSE and MAHONEY,S IRISH PUB
& STEAKHOTJSE.
Third-Party Del'endants
x
This is an aclion for personal injuries stemming from a physical altercation that occurred
outside a bar and restaurant on November 22,2014. By notice of motion dated September 7,
2A23, the third-party defendant, The Last Train Stop, Inc. i/s/h/a The Last Train Stop. Inc. d/b/a
Mahoney's lrish Pub & Restaurant and Mahoney's lrish Pub & Steakhouse, moves pursuant to
CPLR 3212 and 321I to dismiss the third-party complaint against it (motion sequence #3). By
notice of motion dated September 15.2023, the defendant/third-party plaintitf, Devin J.
Carpenter, moves pursuant to CPLR 321l(a)(5) to dismiss the complaint against him (motion
sequence #4). The following papers were read and considered in determining the motions:
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Motion #3:
Movant's motion papers identified as NYSCEF document numbers 84 through
105:
Plaintif ls opposition papers identified as NYSCEF document numbers 125
through 132;
Movant's reply papers identified as NYSCEF document number 134;
Motion #4
Movant's motion papers identitled as NYSCEF document numbers 109 through
117:
Plaintifls opposition papers identified as NYSCEF documenr numbers 125
through 132.
Relevant Factual and Procedural Background
On November 22,2014, plaintiff, Kenneth Garololo ("Garofolo") was a night manager at
a bar and restaurant commonly known as Mahoney's Irish Pub & Steakhouse ("Mahoney's").
Defendant. Devin J. Carpenter ("Carpenter"), was a patron who arrived, already intoxicated, at
Mahoney's sometime between l lpmr and midnight and continued to purchase and consume
alcohol while there. A little before 2:00am, a verbal altercation ensued between Carpenter and a
third-person inside Mahoney's which resulted in multiple security personnel ("bouncers")
removing Carpenter from the bar, outside into the parking lot. Garofolo also went outside and,
according to a witness, was telling Carpenter (along with a bouncer) that he had to leave he had
overstayed his welcome. Also according to a witness, after Garotblo turned away from
Carpenter, Carpenter punched Garofolo on the side of his face and/or head. Garololo was
knocked out, f'ell to the ground and hit his head. He was unconscious lbr a f'ew minutes. He was
taken to the hospital. He is alleged to have suffered, among other injuries, tacial fiactures and a
traumatic brain injury.
1 I lpm on November2l. 2022
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Carpenter was arrested. On December l , 201 6, he was convicted by plea to "Harassment
2nd:Physical Contact."
This action was commenced by the filing of a summons and complaint on December 28,
2015. In his complaint, plaintiff alleges, inter alia,that Carpenter "negligently" assaulted him.
On January 24,2020, Carpenter filed a third-party summons and complaint against
several parties, among them, The Last Train Stop, Inc. (sued herein. as, among other names,
Mahoney's). In his third-party complaint, Carpenter asserts claims for common law
indemnification and/or contribution. Among the facts he alleges in his pleading are that the
third-party defendants negligently hired, trained and./or supervised its employees (which w,ould
include the plaintiffl.
The Last Train Stop, Inc. now moves for, inter alia, summary judgment to dismiss the
third-party complaint against it. It argues that Carpenter has no viable claim fbr common law
indemnification, common law contribution or negligent hiring, that plaintilFdid not suff-er a
"grave injury" under the Workman's Compensation Law, and that the plaintifls claim is baned
by the one-year statute of limitations.
Carpenter also moves to dismiss the complaint as against him asserting that the plaintills
claim is barred by the one-year statute of limilations.
[)iscussion
Common Law lndemnifi cation
"'Common-law indemnification is warranted where a det-endant's role in causing
the plaintif'fs injury is solely passive, and thus its liability is purely vicarious"
(Balladares I Southgote Ov,ners Corp. ,40 AD3d 667 , 67 | 120071:, see Drel,fits t'
MPCC ('orp.,l24 AD3d 830,830 [2015]). 'Since the predicate olcommon-law
indemnity is vicarious liability without actual fault on the part ofthe proposed
indemnitee, it fbllows that a party who has itself actually participated to some
degree in the wrongdoing cannot receive the beneflt ofthe doctrine' (Desena t
North Shore Hehreu' Academy, I l9 AD3d 631, 635 [2014] [internal quotarion
marks omitted])" (Board of Managers oJ Olive Park Condominium v. Maspeth
Props.. LLC,l70 AD3d 645 [2d Dept 2019]).
"The key element of a cause ofaction fbr common-law indenrnification is not a
duty running lrom the indemnitor to the injured party, but rather, is a separate
duty owed the indemnitee by the indemnitor (see Raquel y Braun.90 NY2d 177
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ll997l; Loino. Inc. v Lavallee Law Of/i.,96 AD3d 909 [2012]). "'Since the
predicate of common-law indemnity is vicarious liability without actual fault on
the part of the proposed indemnitee, it follows that a party who has itsellactually
participated to some degree in the wrongdoing cannot receive lhe benefit olthe
doctrine' " (Henderson v llaldbaums, 149 AD2d 461, 462 ll989l,
quoting Trustees of Columbia Univ. v Milchell/Giurgola Assoc., 109 AD2d 449,
453 [ 985]). Here, the Lizza defendants established their entitlement to judgment
as a matter of law dismissing the common-law indemnification causes of action
by showing, prima facie, that any liability of GIC would be based on GIC's actual
wrongdoing, not on GIC'S vicarious liability (.ree Guzrnan v Haven Plaza Hous.
Dev. Fund Co ,69 NY2d 559 [987]l Reinoldv lYalden Terrace, 1rc.. 85 AD3d
1144 l20l1l). The Lizza defendants also established their entitlement to judgment
as a matter of law dismissing the contribution causes ofaction by establishing,
prima facie, that they were not responsible for the happening ofthe accident
(see Nassau Roofing & Sheet Metal Co. v Facilities Dev. ()orp..7l Ny2d 599.
603 [988]; Mack-Cali Realty. L.P. t,Everfoom Insulation Sys., /rc., I l0 AD3d
680, 682-683 [20131; Marist Coll. v Chazen Envtl. Servs., ftc., 84 AD3d I l 8l .
I I 83 [20] I ]). In opposition, GIC failed to raise a triable issue of fact
(.see Winegrad v New York Univ. Med. Clr., 64 NY2d 85 I I 985 j)" (Desenct t'.
t
Norrh Shore Hebreu'Academy. I l9 AD3d 631 [2d Dept 2014]).
The plaintiff s complaint alleges that carpenter "struck, hit and make [sic] contact with
the Plaintiff, Kenneth Garofolo, with his fists and causing Plaintiffto fall to the ground, striking
his head." While the complaint couches this claim against Carpenter in terms of negligence. "it
is well seltled that no cause ofaction for negligent assauh exists in New york" (Barroza v.
krmbade,2l2 AD2d,655 [2d Dept 1995]). Therefore, if carpenter is found liable, it will be for
an intentional tort, not "negligent" assault. By definition, then. his conduct was not solely a
"passive" activity for which he might be able to seek indemnification. Instead, it involved some
degree ofparticipation in the wrongdoing at issue which allegedly resulted in the plaintiff s
injuries. As such, as a matter of law, carpenter cannot recover against The Last Train Stop, Inc.
fbr common law indemnification.
Common Law Contribution
With respect to Carpenter's claim sounding in common law contribution, The Last Train
Stop. Inc. established, prlm a.facie, entitlement to summary judgment by demonstrating that it
was not responsible for the plaintiffs injuries. Rather, Carpenter striking the plaintiff was the
cause of plaintiff s injuries. Carpenter has not opposed The Last Train Stop, Inc.,s motion.
Therefore. he can be deemed to have admitted the allegations made in the motion, which include
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that he was solely responsible for striking the plaintiff (sea I ll lVoodbury Realrl', LL('t. l0
Ber hpage Rd., LLC, I 78 A.D.3d 7 57 l2d Dep't 201 9l("Where a party fails to oppose some or
all matters advanced on a motion for summary judgment, the facts as alleged in lhe movant's
papers may be deemed admitted as there is, in effect. a concession that no question oftact
exists.'')).
While plaintiff did oppose The Last Train Stop, Inc.'s motion2, his assertion that
summary judgment to dismiss Carpenter's claim for contribution should not be granted because
there is a question ol fact as to whether the third-party defendant may have contributed to the
injuries by serving Carpenter alcohol when he was allegedly visibll, intoxicated must fail. As
noted by The Last Train Stop, Inc., there are no allegations to this effect. nor any claims tbunded
on such allegations, in either the complaint or the third-party complaint, nor are there any such
allegations or claims in the plaintiff s bill of particutars. Notably, this action was commenced
approximately eight years ago. Given the lack of any such claim or allegation anywherc in the
pleadings and the age of this action, and in the face ofCarpenter's de.fercto admission that he was
solely responsible for striking the plaintiff, this theory fails (see, e.g.. Mainline Elec.. Corp. t.
Pav-Lak Industries. Inc.,40 AD3d 939 [2d Dep't 2007]).
Ncqliuent IIirin
To the extent the third-party complaint asserts a claim for negligent hiring" supervision
and/or training as contributing to the underlying incident, The Last Train Stop, Inc. is entitled to
dismissal ofsuch claim given the lack ofany allegations in the third-party complaint in support
of its elements, which include that the employer knew or should have known olthe worker's
propensities to engage in the conduct complained of (.see Shu Yuon Huang v. St. ,hthn's
Et'angelical Lutheran Church, 129 AD3d 1053 [2d Dept 2015]).3 Notably, no opposition by any
party has been oflered on this issue.
2 The third-party defendants offer no suppon for their contention that the plaintiffhas no standing to oppose their
motion. CPLR r\3212(b) provides that a motion for summaryiudgment shall be denied if. "any pany shall shou,
facts sufficient to require a trial ofany issue offact."
I The third-party defendants' motion on this particular issue is treated as one pursuant to CPLR I given that
"s321
they argued, in effect, the insufliciency ofthe third-party pleading but did not offer any affinnative evidence in
support of summary judgrnent.
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Statute of Limitations
The argument by Carpenter and The Last Train Stop. Inc. that Garofolo's claims are
barred by the one-year statute of limitations fails. Garofolo has presented suflicient evidence
that the additional time to commence an action under CPLR g2l5(8)(a) applies and that this
action was timely commenced within one year after the termination of Carpenter's criminal
action-
The remaining issues are rendered academic in light ofthe above.
Based on the foregoing, it is hereby
ORDERED that the motion by The Last Train Stop. Inc. i/s/h/a The Last Train Stop. Inc.
d/b/a Mahoney's Irish Pub & Restaurant and Mahoney's lrish Pub & Steakhouse (motion #3) is
granted, and the third-party complaint is dismissed as to this defendant; and it is further
ORDERED that the motion by Devin J. Carpenter to dismiss the complaint (motion #4) is
denied.
Dated: January v 2024 trN'IIl
Poughkeepsi NY
Ho Davis. J.S.C.
Pursuant to CPLR Section 5513, an appeal as ofright must be taken within thirty days after service
by a party upon the appellant ofa copy ofthejudgment or order appealed from and written notice
of its entry, except that when the appellant has served a copy ofthejudgment or order and writtcn
notice of its entry, the appeal must be taken within thirty days thereof.
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Preview
FILED: DUTCHESS COUNTY CLERK 01/05/2024 04:37 PM INDEX NO. 2015-52210 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 01/04/2024 SUPREME COURT- STATE OF NIrW YORK DUTCHESS COUNTY Present: Hon. THOMAS R. DAVIS. J.S.C SUPREME COURT: DUTCHESS COUNTY X KENNETH GAROFOLO and JENNIFER DECISI()N ANI) ()RI)ER GAROFOLO. (Motion Seq. #3 and #.1) Plaintilfs -agalnsl- Index No.: 2015-52210 DEVIN J. CARPENTER. PREFERRED CROUP OF MANHATTAN, INC.. CONSOLIDATED RAIL CORPORATION and CSX TRANSPORTATION, INC.. Def-endants. x DEVIN J. CARPENTER. Third-Party Plaintifl. -agarnst- THE LAST TRAIN STOP, INC., THE LAST TRAIN STOP. INC. d/bia MAHONEY'S IRISH PUB & STEAKHOUSE. P.O.K. TRAIN STATION. LLC, P.O.K. TRAIN STATION. LLC d/b/a MAHONEY'S IRISH PUB & STEAKHOUSE and MAHONEY,S IRISH PUB & STEAKHOTJSE. Third-Party Del'endants x This is an aclion for personal injuries stemming from a physical altercation that occurred outside a bar and restaurant on November 22,2014. By notice of motion dated September 7, 2A23, the third-party defendant, The Last Train Stop, Inc. i/s/h/a The Last Train Stop. Inc. d/b/a Mahoney's lrish Pub & Restaurant and Mahoney's lrish Pub & Steakhouse, moves pursuant to CPLR 3212 and 321I to dismiss the third-party complaint against it (motion sequence #3). By notice of motion dated September 15.2023, the defendant/third-party plaintitf, Devin J. Carpenter, moves pursuant to CPLR 321l(a)(5) to dismiss the complaint against him (motion sequence #4). The following papers were read and considered in determining the motions: Page I of6 1 of 6 FILED: DUTCHESS COUNTY CLERK 01/05/2024 04:37 PM INDEX NO. 2015-52210 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 01/04/2024 Motion #3: Movant's motion papers identified as NYSCEF document numbers 84 through 105: Plaintif ls opposition papers identified as NYSCEF document numbers 125 through 132; Movant's reply papers identified as NYSCEF document number 134; Motion #4 Movant's motion papers identitled as NYSCEF document numbers 109 through 117: Plaintifls opposition papers identified as NYSCEF documenr numbers 125 through 132. Relevant Factual and Procedural Background On November 22,2014, plaintiff, Kenneth Garololo ("Garofolo") was a night manager at a bar and restaurant commonly known as Mahoney's Irish Pub & Steakhouse ("Mahoney's"). Defendant. Devin J. Carpenter ("Carpenter"), was a patron who arrived, already intoxicated, at Mahoney's sometime between l lpmr and midnight and continued to purchase and consume alcohol while there. A little before 2:00am, a verbal altercation ensued between Carpenter and a third-person inside Mahoney's which resulted in multiple security personnel ("bouncers") removing Carpenter from the bar, outside into the parking lot. Garofolo also went outside and, according to a witness, was telling Carpenter (along with a bouncer) that he had to leave he had overstayed his welcome. Also according to a witness, after Garotblo turned away from Carpenter, Carpenter punched Garofolo on the side of his face and/or head. Garololo was knocked out, f'ell to the ground and hit his head. He was unconscious lbr a f'ew minutes. He was taken to the hospital. He is alleged to have suffered, among other injuries, tacial fiactures and a traumatic brain injury. 1 I lpm on November2l. 2022 Page 2 of 6 2 of 6 FILED: DUTCHESS COUNTY CLERK 01/05/2024 04:37 PM INDEX NO. 2015-52210 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 01/04/2024 Carpenter was arrested. On December l , 201 6, he was convicted by plea to "Harassment 2nd:Physical Contact." This action was commenced by the filing of a summons and complaint on December 28, 2015. In his complaint, plaintiff alleges, inter alia,that Carpenter "negligently" assaulted him. On January 24,2020, Carpenter filed a third-party summons and complaint against several parties, among them, The Last Train Stop, Inc. (sued herein. as, among other names, Mahoney's). In his third-party complaint, Carpenter asserts claims for common law indemnification and/or contribution. Among the facts he alleges in his pleading are that the third-party defendants negligently hired, trained and./or supervised its employees (which w,ould include the plaintiffl. The Last Train Stop, Inc. now moves for, inter alia, summary judgment to dismiss the third-party complaint against it. It argues that Carpenter has no viable claim fbr common law indemnification, common law contribution or negligent hiring, that plaintilFdid not suff-er a "grave injury" under the Workman's Compensation Law, and that the plaintifls claim is baned by the one-year statute of limitations. Carpenter also moves to dismiss the complaint as against him asserting that the plaintills claim is barred by the one-year statute of limilations. [)iscussion Common Law lndemnifi cation "'Common-law indemnification is warranted where a det-endant's role in causing the plaintif'fs injury is solely passive, and thus its liability is purely vicarious" (Balladares I Southgote Ov,ners Corp. ,40 AD3d 667 , 67 | 120071:, see Drel,fits t' MPCC ('orp.,l24 AD3d 830,830 [2015]). 'Since the predicate olcommon-law indemnity is vicarious liability without actual fault on the part ofthe proposed indemnitee, it fbllows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the beneflt ofthe doctrine' (Desena t North Shore Hehreu' Academy, I l9 AD3d 631, 635 [2014] [internal quotarion marks omitted])" (Board of Managers oJ Olive Park Condominium v. Maspeth Props.. LLC,l70 AD3d 645 [2d Dept 2019]). "The key element of a cause ofaction fbr common-law indenrnification is not a duty running lrom the indemnitor to the injured party, but rather, is a separate duty owed the indemnitee by the indemnitor (see Raquel y Braun.90 NY2d 177 Page 3 of 6 3 of 6 FILED: DUTCHESS COUNTY CLERK 01/05/2024 04:37 PM INDEX NO. 2015-52210 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 01/04/2024 ll997l; Loino. Inc. v Lavallee Law Of/i.,96 AD3d 909 [2012]). "'Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itsellactually participated to some degree in the wrongdoing cannot receive lhe benefit olthe doctrine' " (Henderson v llaldbaums, 149 AD2d 461, 462 ll989l, quoting Trustees of Columbia Univ. v Milchell/Giurgola Assoc., 109 AD2d 449, 453 [ 985]). Here, the Lizza defendants established their entitlement to judgment as a matter of law dismissing the common-law indemnification causes of action by showing, prima facie, that any liability of GIC would be based on GIC's actual wrongdoing, not on GIC'S vicarious liability (.ree Guzrnan v Haven Plaza Hous. Dev. Fund Co ,69 NY2d 559 [987]l Reinoldv lYalden Terrace, 1rc.. 85 AD3d 1144 l20l1l). The Lizza defendants also established their entitlement to judgment as a matter of law dismissing the contribution causes ofaction by establishing, prima facie, that they were not responsible for the happening ofthe accident (see Nassau Roofing & Sheet Metal Co. v Facilities Dev. ()orp..7l Ny2d 599. 603 [988]; Mack-Cali Realty. L.P. t,Everfoom Insulation Sys., /rc., I l0 AD3d 680, 682-683 [20131; Marist Coll. v Chazen Envtl. Servs., ftc., 84 AD3d I l 8l . I I 83 [20] I ]). In opposition, GIC failed to raise a triable issue of fact (.see Winegrad v New York Univ. Med. Clr., 64 NY2d 85 I I 985 j)" (Desenct t'. t Norrh Shore Hebreu'Academy. I l9 AD3d 631 [2d Dept 2014]). The plaintiff s complaint alleges that carpenter "struck, hit and make [sic] contact with the Plaintiff, Kenneth Garofolo, with his fists and causing Plaintiffto fall to the ground, striking his head." While the complaint couches this claim against Carpenter in terms of negligence. "it is well seltled that no cause ofaction for negligent assauh exists in New york" (Barroza v. krmbade,2l2 AD2d,655 [2d Dept 1995]). Therefore, if carpenter is found liable, it will be for an intentional tort, not "negligent" assault. By definition, then. his conduct was not solely a "passive" activity for which he might be able to seek indemnification. Instead, it involved some degree ofparticipation in the wrongdoing at issue which allegedly resulted in the plaintiff s injuries. As such, as a matter of law, carpenter cannot recover against The Last Train Stop, Inc. fbr common law indemnification. Common Law Contribution With respect to Carpenter's claim sounding in common law contribution, The Last Train Stop. Inc. established, prlm a.facie, entitlement to summary judgment by demonstrating that it was not responsible for the plaintiffs injuries. Rather, Carpenter striking the plaintiff was the cause of plaintiff s injuries. Carpenter has not opposed The Last Train Stop, Inc.,s motion. Therefore. he can be deemed to have admitted the allegations made in the motion, which include Page 4 of 6 4 of 6 FILED: DUTCHESS COUNTY CLERK 01/05/2024 04:37 PM INDEX NO. 2015-52210 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 01/04/2024 that he was solely responsible for striking the plaintiff (sea I ll lVoodbury Realrl', LL('t. l0 Ber hpage Rd., LLC, I 78 A.D.3d 7 57 l2d Dep't 201 9l("Where a party fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in lhe movant's papers may be deemed admitted as there is, in effect. a concession that no question oftact exists.'')). While plaintiff did oppose The Last Train Stop, Inc.'s motion2, his assertion that summary judgment to dismiss Carpenter's claim for contribution should not be granted because there is a question ol fact as to whether the third-party defendant may have contributed to the injuries by serving Carpenter alcohol when he was allegedly visibll, intoxicated must fail. As noted by The Last Train Stop, Inc., there are no allegations to this effect. nor any claims tbunded on such allegations, in either the complaint or the third-party complaint, nor are there any such allegations or claims in the plaintiff s bill of particutars. Notably, this action was commenced approximately eight years ago. Given the lack of any such claim or allegation anywherc in the pleadings and the age of this action, and in the face ofCarpenter's de.fercto admission that he was solely responsible for striking the plaintiff, this theory fails (see, e.g.. Mainline Elec.. Corp. t. Pav-Lak Industries. Inc.,40 AD3d 939 [2d Dep't 2007]). Ncqliuent IIirin To the extent the third-party complaint asserts a claim for negligent hiring" supervision and/or training as contributing to the underlying incident, The Last Train Stop, Inc. is entitled to dismissal ofsuch claim given the lack ofany allegations in the third-party complaint in support of its elements, which include that the employer knew or should have known olthe worker's propensities to engage in the conduct complained of (.see Shu Yuon Huang v. St. ,hthn's Et'angelical Lutheran Church, 129 AD3d 1053 [2d Dept 2015]).3 Notably, no opposition by any party has been oflered on this issue. 2 The third-party defendants offer no suppon for their contention that the plaintiffhas no standing to oppose their motion. CPLR r\3212(b) provides that a motion for summaryiudgment shall be denied if. "any pany shall shou, facts sufficient to require a trial ofany issue offact." I The third-party defendants' motion on this particular issue is treated as one pursuant to CPLR I given that "s321 they argued, in effect, the insufliciency ofthe third-party pleading but did not offer any affinnative evidence in support of summary judgrnent. Page 5 of 6 5 of 6 FILED: DUTCHESS COUNTY CLERK 01/05/2024 04:37 PM INDEX NO. 2015-52210 NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 01/04/2024 Statute of Limitations The argument by Carpenter and The Last Train Stop. Inc. that Garofolo's claims are barred by the one-year statute of limitations fails. Garofolo has presented suflicient evidence that the additional time to commence an action under CPLR g2l5(8)(a) applies and that this action was timely commenced within one year after the termination of Carpenter's criminal action- The remaining issues are rendered academic in light ofthe above. Based on the foregoing, it is hereby ORDERED that the motion by The Last Train Stop. Inc. i/s/h/a The Last Train Stop. Inc. d/b/a Mahoney's Irish Pub & Restaurant and Mahoney's lrish Pub & Steakhouse (motion #3) is granted, and the third-party complaint is dismissed as to this defendant; and it is further ORDERED that the motion by Devin J. Carpenter to dismiss the complaint (motion #4) is denied. Dated: January v 2024 trN'IIl Poughkeepsi NY Ho Davis. J.S.C. Pursuant to CPLR Section 5513, an appeal as ofright must be taken within thirty days after service by a party upon the appellant ofa copy ofthejudgment or order appealed from and written notice of its entry, except that when the appellant has served a copy ofthejudgment or order and writtcn notice of its entry, the appeal must be taken within thirty days thereof. Page 6 of 6 6 of 6