| Zamore v Bar None Holding Co., LLC |
| 2010 NY Slip Op 04275 [73 AD3d 601] |
| May 20, 2010 |
| Appellate Division, First Department |
| Sharon Zamore, Appellant, v Bar None Holding Company,LLC, et al., Respondents. |
—[*1] White & McSpedon, P.C., New York (Tracey Lyn Jarzombek of counsel), forrespondents.
Order, Supreme Court, New York County (Debra A. James, J.), entered April 15, 2009,which granted defendants' motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
Plaintiff alleged that she sustained personal injuries when she was assaulted with a glassthrown unexpectedly by a disorderly patron in defendants' bar as the patron was being escortedfrom the premises by defendants' security personnel.
With the exception of a specific violation of the Dram Shop Acts, the standard of care for anightclub operator is no different from the standard of care for any premises operator(D'Amico v Christie, 71 NY2d 76 [1987]). "Inasmuch as the incident was attributable tothe sudden, unexpected and unforeseeable act of plaintiff's assailant, its prevention was beyondany duty defendant may have had as a landowner to its patrons" (Lewis v Jemanda N.Y.Corp., 277 AD2d 134 [2000]). The court thus properly dismissed the negligent securityclaim.
Liability under the Dram Shop Acts (General Obligations Law § 11-101 and AlcoholicBeverage Control Law § 65) "requires a commercial sale of alcohol" (D'Amico vChristie, 71 NY2d at 84). The claims based upon violation of the Dram Shop Acts were alsoproperly dismissed as there was no evidence that the assailant was served by an employee of thebar (as opposed to being handed a drink by another patron), that the assailant was visiblyintoxicated at the time of the sale, or that the consumption of alcohol was the proximate cause ofthe assault (see e.g. Catania v 124 In-To-Go, Corp., 287 AD2d 476 [2001], lvdismissed 97 NY2d 699 [2002]). Concur—Saxe, J.P., Catterson, Renwick, Richterand Abdus-Salaam, JJ. [Prior Case History: 2009 NY Slip Op 30831(U).]