Esquivel v. Hard Eight Rest. Co., LLC ( 2023 )

Esquivel v Hard Eight Rest. Co., LLC (2023 NY Slip Op 04110)

Esquivel v Hard Eight Rest. Co., LLC

2023 NY Slip Op 04110

Decided on August 2, 2023

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 2, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
PAUL WOOTEN
WILLIAM G. FORD
LILLIAN WAN, JJ.

2019-09642
(Index No. 513672/18)

[*1]Andrew R. Esquivel III, etc., et al., respondents,

v

Hard Eight Restaurant Company, LLC, etc., et al., appellants, et al., defendants.

Kiernan Trebach, LLP, New York, NY (Gail L. Ritzert and Steven H. Rosenfeld of counsel), for appellants Hard Eight Restaurant Company, LLC, George C. Ruotolo III, Justin Ruotolo, Robert M. Magill, James P. Wiseman, and John W. Wiseman.

Nicoletti Spinner Ryan Gulino Pinter LLP, New York, NY (Matthew G. Corcoran and Michael Brown of counsel), for appellants East Third Restaurant Corp., 79 Restaurant Corp., and 36 Wilson Restaurant Company, LLC.

Kishner Miller Himes, P.C., New York, NY (Ryan O. Miller and Jonathan Cohen of counsel), for appellants Meane Joe Greene, LLC, and Graham Avenue Restaurant Company, Inc.

Kramer, Dillof, Livingston & Moore, New York, NY (Matthew Gaier and Gerry Oginski of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the defendants Hard Eight Restaurant Company, LLC, George C. Ruotolo III, Justin Ruotolo, Robert M. Magill, James P. Wiseman, and John W. Wiseman appeal, the defendants East Third Restaurant Corp., 79 Restaurant Corp., and 36 Wilson Restaurant Company, LLC, separately appeal, and the defendants Meane Joe Greene, LLC, and Graham Avenue Restuarant Company, Inc., separately appeal, from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated June 25, 2019. The order, insofar as appealed from by the defendants Hard Eight Restaurant Company, LLC, George C. Ruotolo III, Justin Ruotolo, Robert M. Magill, James P. Wiseman, and John W. Wiseman, denied that branch of the motion of the defendants George C. Ruotolo III, Justin Ruotolo, Robert M. Magill, James P. Wiseman, and John W. Wiseman which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. The order, insofar as appealed from by the defendants East Third Restaurant Corp., 79 Restaurant Corp., and 36 Wilson Restaurant Company, LLC, denied that branch of their motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. The order, insofar as appealed from by the defendants Meane Joe Greene, LLC, and Graham Avenue Restaurant Company, Inc., denied that branch of the motion of the defendants 524 Grand Street, LLC, Meane Joe Greene, LLC, and Graham Avenue Restaurant Company, Inc., which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against the defendants Meane Joe Greene, LLC, and Graham Avenue Restaurant Company, Inc.

ORDERED that the appeal by the defendant Hard Eight Restaurant Company, LLC, [*2]is dismissed, as that defendant is not aggrieved by the order appealed from (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144, 156-157); and it is further,

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the motion of the defendants George C. Ruotolo III, Justin Ruotolo, Robert M. Magill, James P. Wiseman, and John W. Wiseman which was pursuant to CPLR 3211(a) to dismiss the second cause of action insofar as asserted against them, and substituting therefor a provision granting that branch of the motion, (2) by deleting the provision thereof denying that branch of the motion of the defendants East Third Restaurant Corp., 79 Restaurant Corp., and 36 Wilson Restaurant Company, LLC, which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, and substituting therefor a provision granting that branch of the motion, and (3) by deleting the provision thereof denying that branch of the motion of the defendants 524 Grand Street, LLC, Meane Joe Greene, LLC, and Graham Avenue Restaurant Company, Inc., which was pursuant to CPLR 3211(a) to dismiss the second cause of action insofar as asserted against the defendants Meane Joe Greene, LLC, and Graham Avenue Restaurant Company, Inc., and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from by the defendants George C. Ruotolo III, Justin Ruotolo, Robert M. Magill, James P. Wiseman, and John W. Wiseman, and by the defendants Meane Joe Greene, LLC, and Graham Avenue Restaurant Company, Inc.; and it is further,

ORDERED that one bill of costs is awarded to the defendants East Third Restaurant Corp., 79 Restaurant Corp., and 36 Wilson Restaurant Company, LLC, payable by the plaintiff.

Andrew Boyd Esquivel was struck and killed by an allegedly intoxicated driver. The driver allegedly had been served alcohol at a bar, The Whiskey Brooklyn, in violation of General Obligations Law § 11-101, known as the Dram Shop Act. Further facts are set forth in this Court's decision and order in Tabchouri v Hard Eight Rest. Co., LLC (___ AD3d ___ [decided herewith]). Esquivel's father, as administrator of Esquivel's estate, and Esquivel's parents, individually, commenced this action, asserting, inter alia, causes of action alleging a violation of General Obligations Law § 11-101, both directly and under the doctrine of piercing the corporate veil and alter ego liability (second cause of action), negligent hiring, training, and retention, and negligent supervision of The Whiskey Brooklyn and its employees (third cause of action), and wrongful death (fourth cause of action).

For reasons explained in Tabchouri v Hard Eight Rest. Co., LLC (___ AD3d at ___), the Supreme Court incorrectly denied those branches of the separate motions of (1) the defendants George C. Ruotolo III, Justin Ruotolo, Robert M. Magill, James P. Wiseman, and John W. Wiseman, (2) the defendants East Third Restaurant Corp., 79 Restaurant Corp., and 36 Wilson Restaurant Company, LLC (hereinafter collectively the East Third defendants), and (3) the defendants Meane Joe Greene, LLC, and Graham Avenue Restaurant Company, Inc., together with the defendant 524 Grand Street, LLC, which were pursuant to CPLR 3211(a) to dismiss the second cause of action insofar as asserted against each of them. Likewise, for reasons explained in Tabchouri v Hard Eight Rest. Co., LLC ( ___ AD3d at ___), the court incorrectly denied that branch of the East Third defendants' motion which was pursuant to CPLR 3211(a) to dismiss the third cause of action insofar as asserted against them. Further, the court should have granted that branch of the East Third defendants' motion which was pursuant to CPLR 3211(a) to dismiss the fourth cause of action insofar as asserted against them based on the same reasoning we applied in Tabchouri v Hard Eight Rest. Co., LLC (___ AD3d at ___), namely, the failure to assert sufficient factual allegations in the complaint to state a cause of action predicated upon the East Third defendants' alleged liability as alter egos of the defendant Hard Eight Restaurant Company, LLC.

DILLON, J.P., WOOTEN, FORD and WAN, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court