Sapra v. Ten's Cabaret, Inc., 2010 NY Slip Op 30594(U) (N.Y. Sup. Ct. 3/17/2010)

• Decision Date: 17 March 2010
• Docket Number: 100118/2008
• Citation: Sapra v. Ten's Cabaret, Inc., 2010 NY Slip Op 30594(U) (N.Y. Sup. Ct. 3/17/2010), 2010 NY Slip Op 30594, 100118/2008 (N.Y. Sup. Ct. Mar 17, 2010)
• Parties: ANUJ SAPRA and ARTI SAPRA, Plaintiffs, v. TEN'S CABARET, INC. d/b/a CLUB 9 ½, CHRISTOPHER RED A, LF GRAMERCY PROPERTY CO., LLC, and JOHN DOES 1-10, SO NAMED AS THEIR IDENTITIES HAVE YET TO BE ESTABLISHED, Defendants.
• Court: New York Supreme Court

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2010 NY Slip Op 30594(U)

ANUJ SAPRA and ARTI SAPRA, Plaintiffs, v.TEN'S CABARET, INC. d/b/a CLUB 9 ½, CHRISTOPHER RED A, LF GRAMERCY PROPERTY CO., LLC, and JOHN DOES 1-10, SO NAMED AS THEIR IDENTITIES HAVE YET TO BE ESTABLISHED, Defendants.

100118/2008

Supreme Court, New York County.

March 17, 2010.

JOAN A. MADDEN, J.S.C.

PlaintiffsAnuj Sapra("Anuj") and Arti Sapra("Arti") move for reargument of the court's June 29, 2009 order to the extent it granted, upon reargument and renewal, the court's February 9, 2009 decision and order, defendant Ten's Cabaret's (hereinafter "Ten's")motion to dismiss the negligence cause of action, and granted Gramercy Property Company's ("Gramercy")cross motion to dismiss the complaint.Plaintiffs motion is granted as to defendant Ten's and denied as to defendant Gramercy.

This action arises out of personal injuries sustained by the plaintiffs on the evening of January 8, 2005, at Ten's, a nightclub and lounge located at 33-39 East 21^st Street in Manhattan, a building owned by Gramercy.The complaint alleges that two of Ten's patrons, Mohammed Abdul-Shakoor("Shakoor") and Mohammed Asif("Asif') chased plaintiffs directly in front of Ten's down a street and beat plaintiffs with a metal baseball bat.

Plaintiffs allege that on the evening of the incident, they were attending a party for a friend at Ten's when Shakoor grabbed plaintiff Arti and asked her to dance.When Arti refused, Shakoor became angry and her brother, plaintiff Anuj came to Arti's assistance.As Anuj approached Shakoor, Asif joined Shakoor, and both men struck Anuj and pushed him onto a couch.Ten's security lifted Anuj off the couch and removed Anuj, Shakoor and Asif from the dance floor.Ten's security restrained Anuj in front of the club while security led Shakoor and Asif to another area.Shakoor then appeared outside of Ten's with a metal baseball bat while security restrained Anuj.Security informed Shakoor that he could not bring the bat into the club.Shakoor got into an automobile and drove away.

When security released Anuj, Shakoor and Asif appeared and chased Anuj and Arti down the street, where they were attacked with the metal baseball bat.Anuj was struck on the head, face and arms, sustaining serious and life threatening injuries.Arti sustained injuries to her arm.Subsequent to the attack, the assailants were arrested and prosecuted.

The complaint alleges that both Shakoor and Asif were intoxicated as a result of the alcoholic beverages they were served at Ten's on the night of the incident, that the defendants knew or should have known that the men were intoxicated, that both were under the age of 21, and that by reason of their intoxication they caused the plaintiffs to suffer their injuries.

On January 4, 2008, plaintiffs commenced this action asserting claims based on defendants' alleged violation of New York General Obligations Law("GOL")§11-101, for serving alcohol to visibly intoxicated patrons and GOL §11-100, for serving alcohol to patrons under 21 years of age, and for common law negligence.Defendants did not answer the complaint, but instead moved to dismiss it for failure to state a cause of action and based on documentary evidence.

As to defendant Ten's, in the original decision of February 8, 2009, this court found sufficient basis for the negligence action on the grounds that the complaint alleged the altercation began in the premises and resumed in front of the premises shortly after the parties were removed from the premises by Ten's employees, and that this sequence of events was sufficient to state a negligence cause of action.In the decision, it was noted that viewing the assertions in the complaint in the light most favorabte-to plaintiff, as the-court must in a motion to dismiss, the assertions were sufficient to state a cause of action for negligence, as they describe an altercation that escalated over time and not a sudden unexpected event.This court cited Ash v. Fern, 295 AD2d 869(3d Dept2002) in support of this conclusion, noting that in Ash,the defendant's motion for summary judgment dismissing the negligence claim was denied where the record showed that the confrontation escalated over a time period of 10 or 15 minutes and several warnings were given by defendant's employees.

In its June 29, 2009 decision, this court granted reargument to Ten's, and upon reargument, dismissed the cause of action for negligence against Ten's on the grounds that the decision erroneously stated the assault occurred in front of the premises on East 21st Street when the record for the criminal court revealed that the assault occurred on Park Avenue South between East 20th and East 21st Street.This court found that the cause of action for negligence should be dismissed since at the time of the assault, assailants had left the premises and were blocks away, that Ten's did not owe a duty to plaintiffs, and cited D'Amico v. Christie.71 NY2d 76, 88-89(1987).The issue turns on the duty of an owner of a club such as Ten's in protecting its patrons from foreseeable injuries in the area in front of or contiguous to the club.

Plaintiff urges reargument should be granted as in its June 29 decision, the court erred in finding the location of the assault as 254 Park Avenue South as alleged by the defendants from the Bill of Particulars and in the People's Voluntary Disclosure in criminal court, as dispositive of the issue of negligence.

Plaintiff argues that in a pre-answer motion to dismissthe court must accept the facts and permissive inferences to be drawn from the facts as stated in the complaint as true.Plaintiff points to the following allegations in the verified complaint:

Plaintiffs were initially assaulted inside Ten's by the two assailants, who were patrons.The two assailants were escorted out of Ten's by Ten's personnel, and Ten's personnel restrained plaintiff Anuj and brought him to the front of Ten's.One of the assailants was outside Ten's with a baseball bat and was told by Ten's employees he could not come in the club with the bat.The assailant entered a car.Ten's personnel left Anuj alone outside the club.The assailants chased the plaintiffs down and caught them one block from Ten's.Plaintiffs were assaulted by assailants with the bat.

Plaintiffs argue that the conflict began in Ten's, and that Ten's was aware it placed plaintiffs in danger when they left them alone outside the club.As plaintiffs were patrons of Ten's, as were the assailants, plaintiffs argue Ten's owed plaintiffs a duty to protect them from the assailants.

Specifically, plaintiffs argue Ten's had actual notice that there existed a likelihood of harm to plaintiffs and failed to take reasonable steps to insure their safety and that Ten's personnel placed plaintiff Anuj in imminent peril by leaving him in front of the premises.Plaintiffs further argue that the assault was a continuous sequence of events that occurred while plaintiffs were attempting to flee down the streets.¹

A motion for reargument is addressed to the discretion of the court, and is intended to give a party an opportunity to demonstrate that the court overlooked or misapprehended the relevant facts, or misapplied a controlling principle of law.See, Foley v Riche, 68 AD2d 558, 567(1st Dept1979).

Here, plaintiffs' motion to reargue is granted as he correctly argues that in a pre-answer motion to dismiss, the court is limited to ascertaining whether the pleading states any cause of...