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Ingber v. DA Shark Inc.

Supreme Court, New York County

July 23, 2013

JOSH INGBER, MATTHEW WALDMAN and JIMMY ESCOBAR, Plaintiffs,
v.
DA SHARK INC., LESTON SIMPSON, VINO BAR AND RESTAURANT and JBSR ENTERPRISES t/a VINO, Defendants. Index No. 108448/2009

Unpublished Opinion

DECISION AND ORDER

HON. SALIANN SCARPULLA, J.

In this action to recover damages for personal injuries, defendants Vino Bar and Restaurant ("Vino Bar") and JBSR Enterprises t/a Vino (collectively referred to as "Vino") move pursuant to CPLR 2221 for leave to renew their prior motion for summary judgment dismissing all claims for violations of General Obligations Law § 11-101 ("the Dram Shop Act") asserted against them.

The relevant underlying facts and procedural history are fully set forth in this court's prior decision and order dated June 13, 2012 ("the prior order"), and will not be restated here, except as necessary for clarification.

Plaintiffs Josh Ingber, Matthew Waldman, and Jimmy Escobar allege that they sustained serious personal injuries in the early morning hours of December 13, 2008, when pro se defendant Leston Simpson ("Simpson") repeatedly stabbed each of them during an allegedly alcohol-related altercation on premises operated by defendant DaShark Inc. in Monticello, New York.

Plaintiffs initially joined only DaShark and Simpson as defendants. DaShark then commenced a third-party action against Vino, alleging that the altercation between plaintiffs and Simpson had begun at Vino Bar in the late evening on December 12, 2008, and that Vino had served liquor to Simpson while he was visibly intoxicated. DaShark asserted claims for violation of the Dram Shop Act and common-law negligence against Vino. In the prior order, this court granted plaintiffs' motion for leave to amend the complaint to assert a direct cause of action for violation of the Dram Shop Act against Vino.

In the prior order, this court also granted that branch of Vino's motion for summary judgment in Vino's favor on the negligence claim, and denied that branch of the motion for summary judgment in Vino's favor on the Dram Shop Act claim. The court found that genuine triable issues of material fact existed regarding whether Simpson was present at Vino Bar, and was part of a group of individuals that were arguing with Escobar's cousin prior to leaving for DaShark's bar, and, if Simpson was present at Vino Bar, whether he was served alcohol by Vino, and was visibly intoxicated.

Vino now seeks to renew that branch of the prior motion for summary judgment on the Dram Shop Act claim on the ground that the second deposition of Escobar, held August 29, 2012, could not have been held any earlier, and revealed evidence that conclusively demonstrates that even if Simpson had been present at Vino Bar, he could not have been served any liquor by Vino, and was not visibly intoxicated.

In opposition, plaintiffs and DaShark contend that the prior order is correct in all respects, that Vino has failed to present any new evidence warranting renewal of the prior motion, and that, in any event, the purported new evidence is consistent in all respects with Escobar's prior testimony, and similarly raises triable issues sufficient to preclude summary judgment on the Dram Shop Action claims.

Discussion

Pursuant to CPLR 2221(e), an application 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." American Audio Serv. Bur. Inc. v. AT & TCorp., 33 A.D.3d 473, 476 (1stDept. 2006). Renewal "should be denied where the party fails to offer a valid excuse for not submitting the additional facts upon the original application." See Shapiro v. State, 259 A.D.2d 753 (2nd Dept. 1999).

Here, Vino fails to offer any reasonable excuse for not attempting to depose Escobar prior to filing the prior motion on December 6, 2011. While Vino was not yet a party to this action when Escobar's first deposition was held on July 22, 2010, Vino was joined as a third-party defendant in this action on December 8, 2010, and served an answer on March 8, 2011, approximately eight months prior to moving for summary judgment. The length of time between Vino's answer and Vino's motion is more than enough to have permitted Vino to take Escobar's deposition.

Similarly immaterial is the fact that Vino was not joined as a direct defendant until after issuance of the prior order. A third-party defendant has the rights of a party adverse to the third-party plaintiff and the original plaintiff, and, thus, may conduct an examination before trial of the primary plaintiff. See Sledz v. 333 E. 68 St. Corp., 254 A.D.2d 196, 197 (1st Dept. 1998); Williams v. 55 Wall St., 239 A.D.2d 411, 411-412 (2ndDept. 1997). Therefore, Vino was not prevented at any time from deposing Escobar about his knowledge of Simpson's presence at Vino Bar, and whether Simpson appeared intoxicated and was served alcohol by Vino prior to leaving and going to DaShark's bar.

Next, Vino fails to submit any new evidence that resolves any of the triable issues of fact cited by the court in the prior order. A party is not entitled to renewal of a motion based on the same facts asserted in the earlier motion, even if such facts are contained in new documents. Wil ...


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