Panzera v. Johnny's II

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before ROSENBLATT
• Citation: Panzera v. Johnny's II, 678 N.Y.S.2d 336, 253 A.D.2d 864 (N.Y. App. Div. 1998)
• Decision Date: 28 September 1998
• Parties: , 1998 N.Y. Slip Op. 8444 Gerard PANZERA, Appellant, v. JOHNNY'S II, et al., Respondents, et al., Defendants.

Page 336

678 N.Y.S.2d 336

253 A.D.2d 864, 1998 N.Y. Slip Op. 8444

Gerard PANZERA, Appellant, v. JOHNNY'S II, et al., Respondents, et al., Defendants.

Supreme Court, Appellate Division Second Department.

Sept. 28, 1998.

Parker & Waichman (DiJoseph, Portegello & Schuster, P.C., New York, N.Y. [Arnold E. DiJoseph III] of counsel), for appellant.

Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Steven J. Ahmuty, Jr., of counsel), for respondents.

Before ROSENBLATT, J.P., O'BRIEN, RITTER and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Vinik, J.), dated August 4, 1997, as granted that branch of the cross motion of the defendants Johnny's II, 8122 Realty Corp., John Caime, and Barbara Caime which was for summary judgment dismissing the causes of action sounding in common-law negligence insofar as asserted against them.

ORDERED that the order is modified by deleting the provision thereof which granted that branch of the respondents' cross motion which was to dismiss the cause of action against them based on the negligent failure to maintain security and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff Gerard Panzera and his brother Michael were shot by the defendant Francesco Nicoletta in the men's room of a bar on premises owned and operated by the defendants Johnny's II, 8122 Realty Corp., John Caime, and Barbara Caime (hereinafter collectively referred to as the Caime defendants). The plaintiff alleged that Nicoletta was visibly intoxicated and belligerent when the bartender served him additional drinks. In addition, the plaintiff alleged that Nicoletta made threats against him in the presence of the bartender. The bartender asked Michael Panzera, an off-duty police officer, to intervene because Nicoletta was acting belligerently, and Nicoletta subsequently left the premises. However, Nicoletta returned a short time later and shot the Panzera brothers. According to Michael Panzera, the bartender ignored his requests, on three occasions prior to the shooting, to telephone the police for assistance.

In his complaint, the plaintiff alleged a cause of action against the Caime defendants based on the Dram Shop Act (General Obligations Law § 11-101) and additional causes of action sounding in common-law negligence in which he alleged, inter alia, that the Caime defendants failed to properly hire and train their employees and failed to protect the safety of patrons. The Supreme Court granted that branch of the cross motion of the Caime defendants which was to dismiss those causes of action sounding in common-law negligence but denied that branch of their cross motion which was to dismiss the cause of action based on the Dram Shop Act.

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