Recent Appellate Decision Comes Down In NYC Bar Fight Case

On November 27, 2007 the decedent (deceased) attended a party at Duvet Restaurant and Lounge, a restaurant and night club located on W 21st Street in Manhattan, where he was fatally stabbed. The decedent was stabbed outside the night club by another patron as the result of a fight that started inside the club. The decedent was stabbed with a knife that the defendant was able to bring into the club. The lawsuit was bought by the administrator of the decedent’s estate against the perpetrator of the crime as well as the establishment (bar/restaurant). An estate administrator is a person who has been appointed by the court to administer the estate of a person who passed away with no will.

The New York Supreme Court, Appellate Division, Second Department recently amended an order that denied plaintiff’s motion for summary judgment in this wrongful death suit.

The action was commenced against all defendants seeking monetary damages for the wrongful death of the decedent. At this time, the defendant counterclaimed against the plaintiff and crossclaimed against Duvet seeking monetary damages for assault and battery. Defendant was unable to pursue these claims due to pleading guilty to manslaughter at a criminal trial. Upon pleading guilty to manslaughter, the defendant waived his right to all defenses, including the defense of justification. The defense of justification allows certain conduct in order to prevent harm to oneself that is about to occur due to the actions of another person.

The defendant then moved for summary judgment dismissing the complaint against him, stating decedent assaulted and robbed him. The plaintiff then cross moved for summary judgment on the issue of liability against all defendants, dismissing the individual defendant’s counterclaim and affirmative defenses. Duvet cross-moved to subpoena decedent’s “rap sheet,” including all sealed and unsealed records in order to show a history of disorder; the Court denied the motion and cross-motions. gavel.jpg

The trial court decided that all deposition transcripts were inadmissible as evidence because they were not signed and certified, claiming that no party met their prima facie burden and denying all motions. Prima facie means “at first look” in Latin and is used in the legal field to mean that the evidence is sufficient enough to prove a particular fact. In order for the documents to meet their prima facie burden, they must be signed and certified in order to meet the threshold. The Appellate Division found that the trial court made an error in denying the motion based on procedural ground that was not introduced by either party, rather the Court should have disregarded those errors and made the decision based on merit. The Appellate Division also stated that the Court should have granted plaintiff’s motion for summary judgment due to the admission of guilt made by defendant, proven by his deposition transcript.

Plaintiff’s motion for summary judgment for the liability of Duvet was found to be properly denied by the Appellate Court. An owner of real property has the duty to have satisfactory security measures in place to reasonably protect individuals on their property against foreseeable criminal acts of third parties (Bryan v. Crobar, 65 AD3d 997, 999). Duvet raised a triable issue of fact based on the foreseeability of the acts. The defendants questioned whether the decedent’s acts prior to the stabbing were the cause of his death and whether Duvet’s security measures were adequate. It is not necessary that past criminal conduct equal the conduct that the plaintiff was subject to, rather the conduct must be predictable based on similar criminal activity in the area.

The trial court denied plaintiffs motion for summary judgment on the issue of liability against defendant thus dismissing the complaint against Duvet. The trial court also denied defendant’s motion for summary judgment dismissing to dismiss the claim against him. The plaintiff appealed, seeking summary judgment on the issue of liability. The appellate court modified the decision, removing the provision that denied the plaintiff’s cross motion for summary judgment against defendant, granting the motion.

Hartman v Milbel Enters., Inc. 2015 NY Slip Op 06314 (2d Dept. 2015).


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