ADDITIONAL CASES New York City Transit Authority, Metropolitan Transit Authority, Gregory L. King, and Transit Supervisor Anthony Harden, Third-Party Plaintiff’s v. 11 Waverly Pub Ltd. Individually and d/b/a Josie Woods Pub, John Does 1-10, Individuals Employed by 11 Waverly Pub Ltd. Whose Names are not Known, 324 7th Avenue Rest. Corp., Individually and d/b/a as Mustang Sally’s Saloon, 324 7th Avenue, LLC, Individually and d/b/a Mustang Sally’s Saloon, and John Does 11-20, Individuals Employed by 324 7th Avenue Rest. Corp. and/or 324 7th Avenue, LLC, Third-Party Defendants Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion: Papers NYSCEF Numbered Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed 153-177 Opposing Affidavits (Affirmations) 180, 181-183 Reply Affidavits (Affirmations) 184 DECISION/ORDER Upon the foregoing papers, third-party defendant 11 Waverly Pub Ltd. individually and d/b/a Josie Woods Pub (Josie Woods) moves, motion sequence 8, for an order pursuant to CPLR §2221(e), granting it leave to renew its prior motion for summary judgment, and upon renewal, pursuant to CPLR §3212 dismissing the third-party summons and complaint. In this personal injury action, plaintiff allegedly fell from the Utica Avenue subway station platform and was struck by an oncoming train, resulting in his legs being amputated. At the time of his accident, plaintiff was under 21 years of age and allegedly intoxicated. After interposing their answers, defendants New York City Transit Authority (NYCTA), Metropolitan Transit Authority (MTA), the train conductor, Gregory L. King (King) and Transit Supervisor Anthony Harden (Harden) (collectively, the Transit Parties) commenced a third-party action against Josie Woods, operator of Josie Woods Pub, a bar/restaurant, and the other third-party defendants for indemnification and contribution due to third-party defendants’ negligence and violations of General Obligations Law (GOL) §11-101 (the Dram Shop Act) and “New York State Alcohol Beverage Laws.” The third-party complaint alleges, among other things, that Josie Woods illegally served plaintiff alcohol several hours prior to his accident, causing his intoxication and either causing or contributing to the accident. As against Josie Woods, the third-party complaint alleges a cause of action for indemnification and contribution, violation of the Dram Shop Act1, negligent hiring, training, supervision, and retention of employees, and common law negligence. Thereafter, Josie Woods answered the third-party complaint, discovery was held, and on December 3, 2021, plaintiff filed a Note of Issue. Almost four months after the Note of Issue was filed, on March 31, 2022, Josie Woods filed a motion, sequence 7, for summary judgment. In its attorney’s affirmation in support, Josie Woods contended that “[p]ursuant to CPLR §3212 and the rules of this Court, this motion is timely.” Aff of Angelo J. Bongiorno, 7, NYSCEF Doc. No. 122. Josie Woods did not explicitly proffer an excuse for its late motion. By order dated July 13, 2022, the court denied Josie Woods’ summary judgment motion as untimely pursuant to Brill v. City of New York, 2 NY3d 648 (2004). The court held that the Kings County Supreme Court Uniform Civil Term Rules, Part C (6) directs that all post-note of issue summary judgment motions be made no later than 60 days after the filing of the note of issue, and that here, the motion was made more than 60 days after such filing without a showing of good cause for the delay. Motion to Renew Josie Woods now moves to renew its summary judgment motion, contending that the new fact that was needed to complete its motion and constituted a good cause for an extension of time was the deposition of a non-party witness, James Stoney (Stoney), held three months after the filing of the Note of Issue. Josie Woods filed its motion as soon as it received Stoney’s deposition transcript, 14 days after the deposition was held. Josie Woods argues that Stoney’s deposition was material and necessary as the only known witness to the accident and to demonstrate that it was not liable due to the intervening and superseding cause of plaintiff drinking a bottle of alcohol prior to his accident. Josie Woods notes that Stoney testified: (1) that plaintiff was on the subway platform drinking from a liquor bottle in a brown paper bag standing by the edge of the platform when he “nodded off” and fell onto the train tracks, and (2) that Stoney noted a strong odor of alcohol emanating from plaintiff’s breath and body, slurred speech, and observed him to be in an intoxicated state just prior to his fall. Josie Woods concedes that in making its prior motion, it did not explicitly state that Stoney’s deposition was the good cause to make its motion, but that in the interest of judicial economy and resolving cases on the merits, the court can make such a deduction. Josie Woods states that in making the underlying motion, it relied upon the Rules for Municipal City Part 22 of the Court, which did not indicate that the time to make the summary judgment motion was reduced from the 120 days under the CPLR to 60 days. Josie Woods contends that under Brill, it has proffered a satisfactory explanation for its untimeliness. In addition, it notes that, unlike in Brill, the motion was not made on the eve of trial. In opposition, the Transit Parties contend that Josie Woods has failed to meet its burden of raising any new facts or change in the law that would support renewal, or of establishing good cause for renewal of their summary judgment motion. To that end, the Transit Parties argue that Stoney’s deposition is not a “new fact” not offered on the prior motion, and that the argument that Stoney’s testimony established an intervening and superseding cause was argued before the court and rejected. “A motion for leave to renew…shall be based upon new facts not offered on the prior motion that would change the prior determination” and “shall contain reasonable justification for the failure to present such facts on the prior motion.” CPLR 2221 §(e)(2) and (3); see also Mooklal v. Clermont Farm Corp., 187 AD3d 740, 742 (2d Dept 2020); Abrams v. Berelson, 94 AD3d 782, 783-784 (2d Dept 2012). However, “[t]he requirement that a motion for leave to renew must be based on new facts is a flexible one.” Wells Fargo Bank, N.A. v. Malek, 199 AD3d 1040, 1041 (2d Dept 2021); Rakha v. Pinnacle Bus Servs., 98 AD3d 657, 658 (2d Dept 2012). The court has discretion to consider renewal based on facts known to the party seeking renewal at the time of the original motion, but there must be a reasonable justification for failure to present such facts upon the original motion. See Carmike Holding I, LLC v. Smith, 180 AD3d 744, 747 (2d Dept 2020); Dervisevic v. Dervisevic, 89 AD3d 785, 786-787 (2d Dept 2011); Heaven v. McGowan, 40 AD3d 583, 586 (2d Dept 2007). “What constitutes a ‘reasonable justification’ is within the Supreme Court’s discretion.” Dervisevic, 89 AD3d at 787. “With limited exception…, in Kings County, a party is required to make its motion for summary judgment no later than 60 days after the filing of the note of issue, unless it obtains leave of the court on good cause shown.” Torres v. Serlin Building Limited Partnership, 208 AD3d 1195, 1196 (2d Dept 2022); Gonzalez v. Pearl, 179 AD3d 645, 646 (2d Dept 2020); Kings County Supreme Court Uniform Civil Term Rules, part C, Rule 6. Here, Josie Woods filed its summary judgment motion more than 60 days, but less than 120 days, after the note of issue was filed. It is undisputed that Josie Woods did not explicitly argue that Stoney’s post-Note of Issue deposition constituted good cause to extend its time to file a motion. There are also no new facts that occurred subsequent to the filing of the prior motion that would change the court’s determination. Nevertheless, the court finds, in its discretion, that Josie Woods offered reasonable justification for failure to present good cause for an extension to move for summary judgment. See Dervisevic, 89 AD3d at 786-787. The court finds that the fact that Stoney’s deposition occurred after the Note of Issue was filed, and that Josie Woods moved for summary judgment promptly after receipt of Stoney’s deposition transcript, supports a finding of good cause for the extension of time, wherein, Josie Woods explicitly relied on the substance of the deposition in its arguments in support of the motion. Cf. Torres, 208 AD3d at 1196 (no good cause to grant an extension to move for summary judgment where movant waited two and a half months after non-party’s deposition to move). In addition, granting renewal under the particular circumstances of this case also supports New York’s strong public policy favoring the disposition of cases on the merits. See Strong v. Delemos, 172 AD3d 940 (2d Dept 2019); Burro v. Kang, 167 AD3d 694, 697 (2d Dept 2018). Accordingly, the court exercises its discretion and grants Josie Woods’ motion to renew its summary judgment motion. Summary Judgment Motion Josie Woods makes three arguments in support of its motion for summary judgment. First, it contends that the Transit Parties as a quasi-municipal agency and a public benefit corporation does not have standing to bring a third-party action against a bar, as they are not the intended beneficiaries of the Dram Shop Act. Josie Woods argues that the Dram Shop Act does not specifically authorize claims by municipal entities such as the MTA or NYCTA, who are not “injured persons” under the statute because the statutes contemplates “bodily injury” in its definition and neither the MTA nor the NYCTA sustained bodily injury. In opposition, the Transit Parties argue that Josie Woods does not cite any authority for the proposition that a public benefit corporation is not a “person” entitled to the protections of the Dram Shop Act. They further contend that Josie Woods ignores relevant caselaw that would support its liability. Second, Josie Woods argues that it did not violate GOL §11-1002 or Alcoholic Beverage Control Law (ABCL) §65 (1) because plaintiff was neither served nor present in their bar. Josie Woods cites the deposition transcript of Martin Sheil (Sheil), its owner, who testified that he had no personal memory of that evening. Shiel further testified that he worked the evening of the accident but did not know how plaintiff allegedly came to be served. In contrast, plaintiff testified that after about two hours of consuming alcohol at Mustang Sally’s, two to three draft beers, he took an approximately ten minute Uber to Josie Woods. At Josie Woods plaintiff purchased alcohol at the bar with cash, including a beer and a cocktail. At his 50-h hearing, plaintiff testified that he started feeling intoxicated at some point at Josie Woods. The Transit Parties contend that plaintiff’s testimony alone raises the issue of whether Josie Woods knew or should have known that plaintiff was intoxicated at the time that it served him and continued to serve him. Third, Josie Woods argues that the Transit Parties are not entitled to contribution because it did not owe a duty to the Transit Parties, and even if there was a duty that was breached, that breach did not cause or augment plaintiff’s damages for which the Transit Parties seek contribution. Josie Woods cites Stoney’s deposition to demonstrate that it was not liable due to the intervening and superseding cause of plaintiff drinking a bottle of alcohol prior to his accident. In opposition, the Transit Parties allege that since plaintiff was still intoxicated with a blood alcohol level of 0.199 percent at the time of his accident, any argument that plaintiff’s consumption of a pint of alcohol from a brown bag, as testified to by Stoney, broke the causal nexus between the Josie Woods Pub and the accident is “patently ridiculous.” A party moving for summary judgment bears the burden of making a prima facie showing of entitlement to judgment as a matter of law and must tender sufficient evidence in admissible form to demonstrate the absence of any material factual issues. See CPLR §3212 (b); Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Korn v. Korn, 135 AD3d 1023, 1024 (3d Dept 2016). Failure to make this prima facie showing requires denial of the motion. See Alvarez, 68 NY2d at 324; Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidence in admissible form sufficient to establish an issue of material fact requiring a trial. See CPLR §3212; Alvarez, 68 NY2d at 324; Zuckerman, 49 NY2d at 562. “[A]verments merely stating conclusions, of fact or of law, are insufficient to defeat summary judgment.” Banco Popular North America v. Victory Taxi Management, Inc., 1 NY3d 381, 383 (2004) (internal quotations omitted). The court must view the totality of evidence presented in the light most favorable to the nonmoving party and accord that party the benefit of every favorable inference. See Fortune v. Raritan Building Services Corp., 175 AD3d 469, 470 (2d Dept 2019); Emigrant Bank v. Drimmer, 171 AD3d 1132, 1134 (2d Dept 2019). The Dram Shop Act, codified in GOL §11-101, provides for compensation for injury caused by the illegal sale of intoxicating liquor. The statute provides, in relevant part: Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages GOL §11-101 (1). The Dram Shop Act “expressly provides for a right of action by any person ‘injured in person, property, means of support, or otherwise by any intoxicated person’ against the person who unlawfully sold or assisted in the procuring of the intoxicated person’s alcohol” but “has been held not to authorize recovery in favor of the individual whose intoxication resulted from the unlawful sale.” Sheehy v. Big Flats Community Day, Inc., 73 NY2d 629, 635 (1989); see also Butler v. New York City Transit Authority, 3 AD3d 301, 302 (1st Dept 2004) (“The cause of action under the Dram Shop Act, a statutory vehicle for relief distinct from the common law, is limited to a third party injured or killed by an intoxicated person and does not authorize recovery for injuries sustained by the person whose own voluntary intoxication resulted from the sale”). To establish prima facie entitlement to summary judgment as a matter of law under the Dram Shop Act, a tavern defendant must “establish either that it did not serve alcohol to the person while he or she was visibly intoxicated or that its sale of alcohol to him or her had no reasonable or practical connection to the resulting damages.” Flynn v. Bulldogs Run Corp., 171 Ad3d 1136, 1137 (2d Dept 2019); Pinilla v. City of New York, 136 AD3d 774, 776-777 (2d Dept 2016); see also Hurtado v. Williams, 112 AD3d 1047, 1048 (3d Dept 2013) (“In order to establish its entitlement to summary judgment, the Tavern was required to present evidence excluding the possibility that it served Williams alcohol when she was visibly intoxicated.”) While plaintiff would not be able to recover directly against Josie Woods under the Dram Shop Act, Transit Parties have standing to seek contribution from Josie Woods under the statute. In O’Gara v. Alacci, 67 AD3d 54 (2d Dept 2009), the Appellate Division, Second Department, in the context of a CPLR §3211(a)(7) motion to dismiss, held that an owner and operator of a car that struck an intoxicated and allegedly careless pedestrian may seek contribution from the tavern that sold the pedestrian alcohol, based on the tavern’s violation of the Dram Shop Act., See O’Gara, 67 AD3d at 55, 59. The Second Department reasoned that, assuming a Dram Shop violation, the tavern would have breached a duty owed to the vehicle’s owner/operator, a member of the public whom the Dram Shop Act was intended to protect. Id. at 58 (“[t]he Dram Shop Act, intended to, among other things, protect the community from the dangers intoxicated people pose”). The court further held that permitting contribution under such circumstances “promotes one of the important goals of the Dram Shop Act, namely, motivating sellers of alcohol to exercise greater care in their sales.” Id. at 59. In holding that a tortfeasor may properly seek contribution from an alcohol vendor based upon a Dram Shop Act violation, the Court cited other cases that have similarly found that contribution was allowed. See O’Neill v. Ithaca Coll., 56 AD3d 869, 870 (3d Dept 2008), Tratt v. Washington Building. Mgt. Co., 2007 NY Slip Op 51006(U) (Sup Ct, Broome County 2007); Johnson v. Plotkin, 172 AD2d 88, 90 (3d Dept 1991) (holding the Town of Thompson may seek contribution from tavern owner based on tavern owner’s illegal sale of alcohol); Smith v. Guli, 106 AD2d 120 (4th Dept 1985) (tavern may seek contribution from grocery store and all other vendors who sold underage driver alcohol, thereby contributing to his accident); Tratt v. Washington Bldg. Mgt. Co., 2007 NY Slip Op 51006(U) (Sup Ct, Broome County), Lebous, J. (landlord fraternity house where plaintiff college student fell from a third floor landing may seek contribution from sports bar where he had been drinking, contrary to sports bar’s contention that the Dram Shop Act was meant to protect the public and “not to provide an offset for money damages”). Moreover, a lower court case in this county has recognized O’Gara’s applicability. See Ploskikh v. Vcharashansky, 2017 NY Slip Op 320104(U) (Sup Court, Kings County, Silber, J.). In a recent lower court decision, the court found that a bar may be liable to Two Boots restaurant for contribution where a pedestrian who had been served alcohol by the bar subsequently tripped over garbage bags placed on the sidewalk by the restaurant and was then struck by a NYC garbage truck. See Schoonover v. City of New York, 2018 NY Slip Op 31777(U) (Sup Ct, NY County, Tisch, J.). The court held that despite the argument that the purpose of the Dram Shop Act is to “protect the community” and not a commercial establishment such as Two Boots, this additional factor did not preclude Two Boots from asserting a claim for contribution, as it is the alleged breach of the Dram Shop Act by third-party defendants that gives rise to the claim. See Oursler v. Brennan, 67 AD3d 36, 45 (4th Dept 2009). The Court finds Josie Woods’ argument that the Transit Parties do not have standing to bring a third-party action because they are not the intended beneficiaries of the Dram Shop Act to be unconvincing. They cite two Court of Appeals cases in support of its contention, however, the cases cited do not stand for said proposition. The issue in D’Amico v. Christie, 71 NY2d 76 (1987), was not whether a “person” under the Dram Shop Act included a public or municipal entity, but rather, whether the terms “unlawfully selling” included social hosts or was limited only to commercial sales. See D’Amico v. Christie, 71 NY2d at 83-84; see also Schrader v. Carney, 180 AD2d 200, 207 (4th Dept 1992) (recognizing that in D’Amico, the court, in interpreting the Dram Shop Act, did not construe the words “any person” but instead construed the limiting words “unlawfully selling” and properly declined to extend liability to social hosts). Likewise, in Sherman v. Robinson, 80 NY2d 483 (1992), the court did not construe the term “persons” in the Dram Shop Act. Therefore, the Court finds that a municipality or a public entity can seek contribution from a tavern owner when that tavern owner has allegedly committed a Dram Shop Act violation. Moreover, allowing the Transit Parties to seek contribution from Josie Woods “promotes one of the important goals of the Dram Shop Act, namely, motivating sellers of alcohol to exercise greater care in their sales.” O’Gara v. Alacci, 67 AD3d at 59. Accordingly, Josie Woods’ motion to dismiss the causes of action against them on the ground that the Transit Parties lack standing is denied. As to movant’s second argument, the court finds that Josie Woods has failed to meet its prima facie burden of demonstrating they did not serve alcohol to plaintiff while he was visibly intoxicated. Plaintiff’s testimony that he drank two to three drinks at Mustang Sally’s, drank more alcohol at Josie Woods Pub, and felt intoxicated, at the very least, raises a question of fact as to whether he was visibly intoxicated while being served alcohol at Josie Woods Pub. Josie Woods failed to submit any evidence excluding the possibility that it served plaintiff alcohol while he was visibly intoxicated. See Hurtado, 112 AD3d at 1048. Notably, Josie Woods has not offered any testimony of evidence or affidavits from any of the bartenders or food servers working that night, or any eyewitnesses, who observed plaintiff and could attest to their contention that he did not look visibly intoxicated. Therefore, Josie Woods’ summary judgment motion is denied as to the first and fourth causes of action in the third-party complaint that seek contribution and indemnification based on a Dram Shop Act violation. Although Josie Woods moves for summary judgment dismissing the third-party complaint, in its motion papers, it makes no specific arguments directed at the fifth cause of action for negligent hiring, training, supervision, and retention of employees asserted in the third-party complaint. Accordingly, Josie Woods has failed to meet its burden in moving for summary judgment on this cause of action, and thus that branch of its motion related thereto is denied. With respect to the sixth cause of action for negligence in the third-party complaint, that cause of action is dismissed. At common law, there is no basis for imposing liability on tavern owners for plaintiff’s injuries. See D’Amico v. Christie, 71 NY2d 76 (1987); Estate of Feenin v. Bombace Wine and Spirits, Inc., 188 AD3d 1001 (2d Dept 2020). Accordingly, it is hereby ORDERED that Josie Woods’ motion, sequence 8, for leave to renew its prior summary judgment motion is granted, and that upon renewal, the sixth cause of action for negligence against Josie Woods is dismissed. The balance of the motion is denied. The court has considered the parties’ remaining contentions and finds them to be without merit. All relief not explicitly granted is denied. The foregoing constitutes the decision and order of the court. Dated: December 30, 2022
