In Hirsch v. Solares, 2018 NY Slip Op 07828 (App. Div. 1st Div. Nov. 15, 2018), a personal injury action arising from a bar fight, the court held that summary judgment was properly denied as to plaintiff’s negligence claim, but that plaintiff’s claim for strict liability under Alcoholic Beverage Control Law § 65(2) should have been dismissed.
As to the negligence claim, the court reasoned:
The motion court correctly found that issues of fact exist whether defendants breached a duty to maintain safe premises and protect their patrons from assaultive conduct by third parties and whether reasonable security measures could have thwarted or minimized the injury plaintiff suffered at the hands of defendant Solares (see King v Resource Prop. Mgt. Corp., 245 AD2d 10 [1st Dept 1997]; Florman v City of New York, 293 AD2d 120, 124 [1st Dept 2002]). Plaintiff’s expert set forth the standard security measures applicable to defendants’ type of establishment, which included a bar, a restaurant seating area, and a music stage. However, the record shows that there were no security measures in place, and, moreover, that the restaurant manager had observed the escalating incident between Solares and plaintiff without responding initially, that the scuffle moved from a table to the prep kitchen, covering a distance of approximately 40 feet, and that the worst of the beating was inflicted upon plaintiff in the prep kitchen.
The court held that the statutory/strict liability claim, however, should have been dismissed, since “there is no evidence that defendants unlawfully served Solares alcohol while he was visibly intoxicated” and there was “no evidence that defendants served Solares alcohol at all.”