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SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO THE CLUB AND THE SECURITY COMPANY IN THIS THIRD PARTY ASSAULT CASE; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE CLUB COULD BE HELD RESPONSIBLE FOR CRIMINAL ACTIVITY IN THE STREET IN FRONT OF THE CLUB, WHETHER THE CLUB WAS THE SPECIAL EMPLOYER OF THE BOUNCERS AND THEREFORE SUBJECT TO VICARIOUS LIABILITY, AND WHETHER THERE WAS DRAM SHOP ACT LIABILITY (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defendant club (Sin City) and security company (Emissary) were not entitled to summary judgment in this third-party assault case. The facts are not described, but apparently plaintiffs were assaulted on the street in front of the club. There was a question of fact whether Sin City was a special employer and therefore vicariously liable for the actions of Emissary’s bouncers. The court noted, with respect to the Dram Shop Act (General Obligations Law 11-101) cause of action, the defendants did not demonstrate the assailants were not served alcohol while visibly intoxicated and did not demonstrate the sale of alcohol to the assailants had no connection to the assault:

Issues of fact remain as to defendants’ control of the street in front of the club, where plaintiffs’ assault occurred … ; whether defendants could or should have foreseen plaintiffs’ assault, given not only the events that transpired in the club prior to the assault … , but also the acts of violent or criminal conduct at the club predating plaintiffs’ assault … and, whether Sin City was the special employer, and is therefore vicariously liable for the acts and omissions, of Emissary’s bouncers, who provided security for Sin City on the night in question and allegedly assaulted the plaintiffs … . Ballard v Sin City Entertainment Corp., 2020 NY Slip Op 06842, First Dept 11-19-20

 

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