Dugan v. Olson
| Decision Date | 22 June 2010 |
| Citation | 74 A.D.3d 1131,906 N.Y.S.2d 277 |
| Parties | Gregory DUGAN, respondent, v. Brian OLSON, et al., defendants, Minnesota's Grill & Bar, appellant. |
| Court | New York Supreme Court — Appellate Division |
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Richard E. Lerner and Patrick J. Lawless of counsel), for appellant.
Dell, Little, Trovato & Vecere, LLP, Bohemia, N.Y. (Keri A. Wehrheim of counsel), for respondent.
STEVEN W. FISHER, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
In an action to recover damages for personal injuries, the defendant Minnesota's Grill & Bar appeals, as limited by its brief,from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), entered September 8, 2009, as denied that branch of its motion which was for summary judgment dismissing the cause of action alleging a violation of General Obligations Law § 11-101(1) insofar as asserted against it.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Minnesota's Grill & Bar which was for summary judgment dismissing the cause of action alleging a violation of General Obligations Law § 11-101(1) insofar as asserted against it is granted.
The plaintiff allegedly was injured as a result of an altercation with the defendantBrian Olson at approximately 1:45 A.M. on July 5, 2004. Olson testified during related criminal proceedings that, on July 4, 2004, he had dinner with his sister and a friend at an establishment known as the Tiki Bar, where he drank two bottles of beer. He testified further that he smoked marijuana later in the evening, and then, between the hours of 11 P.M. and 1:45 A.M., he consumed four or five bottles of beer at the defendant bar, Minnesota's Grill & Bar (hereinafter MG & B). Olson, his sister, Emily Sloan, and his friend, Alex Tulin, each testified at Olson's criminal trial that he was not intoxicated when he left MG & B. According to the deposition testimony of several witnesses, as Olson, Tulin, and Sloan were walking away from MG & B, they encountered the plaintiff on the street two blocks away, and a verbal altercation escalated, after which Olson picked up a glass bottle and struck the plaintiff over the head with it, causing injuries.
The plaintiff commenced this action against, among others, MG & B, asserting, inter alia, a cause of action alleging a violation of the Dram Shop Act (General Obligations Law § 11-101) (hereinafter the Dram Shop Act cause of action). MG & B moved, among other things, for summary judgment dismissing that cause of action. The Supreme Court denied that branch of the motion which was for...
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