Thursday, August 6, 2015

An assault by an intoxicated individual, and leave to amend.

Practice point:   To establish prima facie entitlement to judgment as a matter of law dismissing a complaint alleging an assault by an intoxicated individual, a defendant must establish either that it did not serve alcohol to the plaintiff's assailant while he or she was visibly intoxicated, or that its sale of alcohol to the assailant had no reasonable or practical connection to the assault.

Here, the Appellate Division determined that defendants failed to meet their burden, and affirmed the denial of defendants' motion.  Plaintiff alleges that he was assaulted by an intoxicated patron at approximately 1:30 a.m. at a bar owned by defendants. In support of their motion, defendants submitted a copy of plaintiff's deposition testimony in which he testified that his assailant was at the bar when he arrived around midnight or 12:30 a.m., and that, upon his arrival, his assailant had a glass in his hand and was visibly intoxicated.

Defendants also submitted the deposition testimony of the defendant who tended bar that night.  He testified that plaintiff's assailant was already in the bar when he started tending bar at 8 p.m., and that he eventually stopped serving the assailant hours later because the assailant was visibly intoxicated.

Student note:  The Appellate Division also affirmed the granting of plaintiff's cross motion for leave to amend the complaint to add a cause of action alleging a violation of the Dram Shop Act, codified at General Obligations Law § 11-101. The proposed amendment was neither palpably insufficient nor patently devoid of merit, pursuant to CPLR 3025[b].  In addition, there will be no undue prejudice or surprise to the defendants by virtue of the amendment.

Case:  Covert v. Wisla Corp., NY Slip Op 06308 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A quantum meruit claim is denied.