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New York Paramount Theatre Personal Injury Case - Plaintiff states a cause of Action under Dram Shop

Venues and bars owe certain duties to their patrons. Plaintiff alleges he was injured by an intoxicated patron on the premises owned by the Defendant, here Paramount Theatre. Plaintiff was employed by Blackbird Enterprises, LLC, the entity that operated the VIP room at the Paramount Theatre. Allegedly, Arrow Security was employed to provide security services to patrons and the premises "including the alleyway located behind the building." The Defendant moved to dismiss the complaint, alleging that its contract did not provide for or allow for a benefit to flow to third parties, here the VIP room employees (that were employed by Blackbird, not Paramount Theatre).

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Sokol v Leader, 74 AD3d 1180, 1181 [2010]). "Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Agai v Liberty Mut. Agency Corp., 118 AD3d 830, 832 [2014]; see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275 [1977]). In considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (1), "such motion may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Nunez v Mohamed, 104 AD3d 921, 922 [2013]).

There were two causes of action, one sounding in negligence and the other asserting a Dram Shop Act Violation pursuant to General Obligations Law Section 11-101. Dram Shop Act is contained within New York General Obligations Law § 11-100, § 11-101 and New York Alcoholic Beverage Control Law § 65. General Obligations Law (GOL) Section 11-100 provides a cause of action against “any person who knowingly causes such intoxication or impairment of ability by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for such person with knowledge or reasonable cause to believe that such person was under the age of twenty-one years.” GOL Section 11-101 allows one to sue any person who unlawfully sold or assisted in procuring liquor for such intoxicated person and caused or contributed to such intoxication. The unlawful conduct set forth in § 11-100 and § 11-101 is defined in New York Alcoholic Beverage Control Law § 65, which provides that “no person shall sell, deliver or give away or cause or permit or procured to be sold, delivered or given away any alcoholic beverages to (1) Any person, actually or apparently, under twenty-one years and (2) Any visibly intoxicated person.” The question becomes, did the Plaintiff allege a cause of action against Paramount Theatre even though the contract between Paramount and Arrow expressly excluded any third party, namely Blackbird and its employees.

The Court holds that

Arrow failed to conclusively establish that it owed no common-law duty to the plaintiff. To the contrary, the allegations in the complaint, viewed in the light most favorable to the plaintiff (see Leon v Martinez, 84 NY2d at 87-88), set forth a cognizable legal theory under which Arrow could be found to have assumed a duty of care to the plaintiff by calling for and instructing him to investigate, restrain, and/or detain the intoxicated John Doe (see Mirza v Metropolitan Life Ins. Co., 2 AD3d at 809; see also Wolf v City of New York, 39 NY2d 568, 573 [1976]; Gauthier v Super Hair, 306 AD2d 850, 851 [2003]; cf. Buckley v I.B.I. Sec. Serv., 157 AD2d 645, 645-646 [1990]). A duty of care may be assumed where a "defendant's conduct placed plaintiff in a more vulnerable position than plaintiff would have been in had defendant done nothing" (Heard v City of New York, 82 NY2d 66, 72 [1993]), or where a defendant's conduct "enhanced the risk that plaintiff faced, created a new risk or induced plaintiff to forego some opportunity to avoid risk" (Gauthier v Super Hair, 306 AD2d at 852 [internal quotation marks and brackets omitted]).

The Paramount was in the business of selling alcohol as part of its hosting bands and a V.I.P. club. C.f. Carr v. Kaifler, 601 A.D.2d 584, 585 (2d Dep’t 1993); Custen v. Salty Dog, Inc., 170 A.D.2d 572 (2d Dep’t 1991). Unfortunately, for the Paramount, they simply cannot contract away their liability for failing to secure the premises vis-a-vis its hiring Arrow security. Plaintiff's cause of action survives Paramount Theartre's motion to dismiss the personal injury claim.

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