New York Appellate Court upholds non-jury trial award and subsequent modification to decision regarding apportionment of liability.

The New York Appellate Division, Second Department, recently upheld a February 11, 2013, non-jury trial award to the plaintiff, Corey Epstein, and an April 4, 2013, order modifying the decision as to apportionment of liability in a dram shop and negligent security claim in the City of New York, Richmond County. The plaintiff brought an action against a Manhattan bar, alleging dram shop and negligent security, in connection with a stabbing that occurred inside the bar on January 16, 2009. Following a non-jury trial, the civil court issued a decision awarding the plaintiff $900,000. Following a motion by the plaintiff, and a cross-motion to set aside the decision filed by the defendant bar-owner, the court modified the February 2013 decision, finding the bar 80% at fault and the assailant 20% at fault. At trial, there was uncontradicted testimony that the assailant drank heavily through the night, was visibly intoxicated and had become aggressive before stabbing the plaintiff. Thus, the Appellate Court held that there was no valid line or reasoning and permissible inference that could have led to any other conclusion than that the assailant was served while visibly intoxicated. The Appellate Court further noted that the evidence at trial established that the incident had slowly evolved over the course of the night and that a reasonable person could find that the defendant’s failure to have adequate security, in order to be made aware of and control the criminal conduct of the assailant, constituted negligence. Lastly, the court held that it was not against the weight of the evidence to apportion a negligent tortfeasor a greater percentage of fault than an intentional tortfeasor when the evidence demonstrated that the bar continually served alcohol to the visibly intoxicated assailant and that approximately 10-15 minutes elapsed, without the intervention of security personnel, between the time the fighting began and the time the plaintiff was stabbed.

_{Case Law Alerts, 1st Quarter, January 2016}

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