The following papers numbered 1 to 11 were read on this motion by the defendant SCOOBY'S BAR & LOUNGE, INC. for an order pursuant to CPLR 3212 granting summary judgment in favor of the defendant and dismissing the plaintiff's complaint:

Papers Numbered

Notice of Motion-Affidavits-Exhibits-Memo of Law.....1 - 5

Affirmation in Opposition-Affidavits-Exhibits........6 - 8

Reply affirmation....................................9 - 11

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This is an action to recover damages due to physical injuries sustained by the plaintiff when he was assaulted during the course of an altercation at a bar on January 8, 2009.

The plaintiff commenced this action by filing a summons and complaint on April 28, 2009, naming Scooby's Bar and an unidentified bouncer as the defendants. In his complaint, the plaintiff alleges that on January 8, 2009, he was a patron at the [*2]premises known as Scooby's Bar and Lounge, Inc. ("Scooby's"), located at 118-07 Atlantic Avenue, Queens County, New York. Plaintiff contends that he was assaulted by a bouncer, identified only as "John Doe" who was acting in the scope of his employment. Plaintiff alleges that as a result of the assault he sustained serious injuries. The complaint also includes causes of action for negligence, for negligent hiring and retention, and for punitive damages. Issue was joined by service of Scooby's verified answer on August 20, 2009. The answer contains affirmative defenses including plaintiff's culpable conduct, voluntary assumption of risk, failure to name the party who allegedly caused the injuries, and culpable conduct of third persons over whom the defendant had no control.

In his verified Bill of Particulars dated September 18, 2009, the plaintiff states that as a result of the assault he sustained, inter alia, a bilateral mandibular fracture requiring open reduction and internal fixation; intracranial hemorrhage; laceration to the chin requiring nine sutures; and a fracture of the central incisor.

Defendant Scooby's moves for an order granting summary judgment and dismissing the plaintiff's complaint on the ground that the plaintiff's injuries were the result of a sudden and unexpected fight that occurred at the defendant's bar. Counsel contends that the defendant did not owe plaintiff a duty to protect him from the fight as the altercation between the plaintiff and a person known as "Miff" was unforeseeable, there was no notice that plaintiff would involve himself in an altercation that was happening between two other patrons, and plaintiff assumed the risk of his actions by swinging at another individual and voluntarily participating in the fight.

In support of the motion counsel, Gregory S. Katz, Esq. submits his own affirmation as well as the deposition testimony of the plaintiff, Leon Gill, the deposition testimony of the co-owner of Scooby's, Sarita Nakumar, and the deposition of a non-party witness, Shazim Imamudin.

At his examination before trial taken on January 20, 2010, the plaintiff, Leon Gill, age 33, testified that on the night of the incident Sarita Nakumar and her boyfriend Shazim "Shaz" Imamudin picked him up at a hair salon where he worked as a stylist at approximately 9:00 p.m. The plaintiff and Shaz were at the bar "promoting," meaning that they had given out flyers to attract customers and in return they would receive a percentage of the bar proceeds. The plaintiff stated he had two beers prior to the incident. When asked to describe what led up to the [*3]incident in which he was injured, the plaintiff stated:

"Well, there was an argument with Shawn and someone else, and they had a group of people that, you know, came around, the bouncers came and, you know, just separate so it wasn't a fight. Just to separate, you know, everyone go back to what you were doing. And, um, her boyfriend Shaz got into an argument with one of the bouncers, he cleans up as well, and, um, they got into a fight, they got into a verbal conflict and he hit him, the bouncer hit her boyfriend."

Upon furthering questioning, the plaintiff stated that initially a patron by the name of Shawn was involved in a verbal altercation with other patrons at the bar. That argument started a few hours after the plaintiff arrived at the bar. He stated that the bouncers stopped the verbal altercation by telling them to break it up. A few minutes later, plaintiff's friend, Shaz, was having a verbal argument with a bouncer and the bouncer hit Shaz and knocked Shaz out. The plaintiff, who was standing in the same area, went over to Shaz who was on the ground at which point another bouncer, without saying anything first, immediately hit plaintiff and knocked the plaintiff out. The bouncer that hit the plaintiff was not the same bouncer that hit Shaz. Plaintiff testified that he did not swing at the bouncer. The next thing plaintiff remembers is waking up in Jamaica Hospital. He stated that he sustained a broken jaw, a cracked front tooth and nine stitches to his chin. He was admitted to the hospital and stayed for three days.

The plaintiff testified that he did not know the name of the bouncer that hit him although he described him as African-American, with dark skin, tall, short hair, and weighing 200 plus pounds. When asked what made him think the person who hit him was a bouncer, the plaintiff replied, "because he checks people's ID, searching them, searching them before they enter the lounge." Plaintiff stated that on that night the bouncer arrived after the plaintiff and was talking to the plaintiff at the bar. The plaintiff speculated that the reason the bouncer hit him was because the bouncer believed that the plaintiff was going to defend Shaz. The plaintiff testified that he had seen the bouncer that hit him at the bar every week for three weeks prior to the incident and every other time he had been to the bar "throughout the years." Plaintiff also testified that Scooby's was a bar that was known to be a place where fights broke out. He stated that his brother, Leonard was involved in a fight prior to his incident.

In his affidavit dated March 30, 2011, submitted in [*4]opposition to the motion, the plaintiff added that he had promoted at Sccoby's on three prior Thursdays in addition to the night of the fight on January 8, 2009. He states that bouncers were present at each of his promotion nights and he states that he had explicitly told Sarita and her brother Scooby, the owners of the bar, that he wanted the bouncers to check everyones ID upon entering the club and to pat down the males and check females handbags. He states that the bouncer who struck him was stationed outside the front door when he initially arrived at the bar with Sarita and Shaz. He stated that the bouncer who struck him checked his ID prior to his entering. He stated that the bouncer who struck him had been present at the front door checking IDs the previous three Thursdays he was there as well as "each time I frequented the bar prior to promoting." He also states that he observed the bouncer who struck Shaz that evening working at the bar on prior occasions cleaning the premises.

Sarita Nankumar was deposed on January 20, 2010 and testified that she is a part owner with her brother of Scooby's Bar & Lounge, Inc. She and her brother, Rakesh "Scooby" Nankumar have owned the bar for the past five years. She testified that on the night of the incident she arrived at the bar at about 10:00 p.m. with her boyfriend Shazim Imamudin known as Shaz. Shaz and the plaintiff were "promoting" at the bar. She testified that when she arrived there was no one at the front door checking IDs. The IDs were checked at the bar. She testified that there were no bouncers working at the bar on the night of the incident and the last time Scooby's had a bouncer staff was one year prior to the incident. At that time they had five bouncers who worked in rotation. However, she also testified that even after they stopped employing bouncers on a regular basis she would still call bouncers in on a busy night. She stated that on the night of the incident, two individuals known as "Shake" and "Dale" who had previously worked as bouncers at the bar were on the premises but were not working as bouncers. She stated that at about 3:45 a.m. she was standing at the bar with Shawn and his girlfriend when she observed Shaz verbally arguing with one of his friends. She went over to Shaz and had him walk to the front of the bar. She then saw her boyfriend arguing with an individual known as Mike also known as "Miff." Shaz threw a punch at Miff and missed and Miff then hit Shaz and Shaz fell to the ground. She testified that she observed the plaintiff then jump up from his seat and take a swing at Miff which missed. She then saw Mike hit the plaintiff one time and saw the plaintiff hit the ground and observed that he was unconscious. Mike ran out and the police arrived ten minutes later. She said she saw that the plaintiff had a three or four beers, a shot of Hennessy and a shot of Patron. [*5]

With respect to whether she employed bouncers on the date of the incident Sarita testified that she employed bouncers from 2005 through 2008. She said the bouncers wore a shirt that said security on the back and Scooby's on the front. She also testified that although they had a video surveillance system with seven cameras installed on the premises, the system wasn't working on the night of the incident. She also testified that she had observed a fight on the premises about six months prior to the incident and another with plaintiff's brother.

In its response to plaintiff's demand for discovery, defendant stated that "defendants are not in possession of records regarding which employees were working on the date of the incident of January 8, 2009."

In support of the motion the defendant also submitted a copy of the deposition testimony of Shazim "Shaz" Imamudin taken on July 21, 2010. Shaz, who manages Maracas Night Club, testified that he was present at the bar on the night of the fight. He testified that he and his girlfriend Sarita went to the bar with the plaintiff. He stated on that night he and Leon were promoting the bar by giving invitations to friends to come to the bar. When asked if Scooby's had any bouncers the night of the incident he stated that they did not. He stated that Miff, who was a former bouncer, was present at the bar that evening. He also testified that he had three shots of Hennessy, two shots of Patron and five beers. He stated that the plaintiff had three of four Johnny Walker black and two or three beers. He stated that at about 3:30 a.m., right before the bar was closing an altercation started between Shawn and three other patrons. Miff came over to him and he started arguing with Miff. Shaz testified that he swung at Miff and Miff then punched him causing him to black out for five minutes. When he woke up he observed Leon on the floor. Sarita told him that Leon swung at Miff and Miff swung back and hit Leon knocking him down. Shaz then called an ambulance for Leon.

Shaz went to the Jamaica Hospital Emergency Room with Leon. At the hospital Leon did not remember what happened to him. Leon did remember that he saw Shaz get hit and he ran over but he did not remember anything after the incident. He also testified that Shake and Dale were both at the bar that night. He testified that although he never saw Miff working as a bouncer at Scooby's, Miff had told him that he did work as a bouncer there. He testified that he was drunk at the time of the incident. He also testified that he observed Miff working at the bar mopping and cleaning up. He also stated that Scooby's did employ bouncers prior to the date of the incident. He stated that Miff was not working as a [*6]bouncer that night but it was possible he was working as a cleaner. He stated that when he was first arguing with Miff that Scooby tried to break it up. He did not see anyone checking IDs at the door when he arrived. He testified that he did not see Leon being hit and, other than what he was told, he does not know from personal knowledge who hit Leon. He stated that he did not see anyone dressed as a bouncer on the date of the incident.

Defense counsel contends that the deposition testimony submitted in support of the motion for summary judgment demonstrates that the fight in which the plaintiff was injured was sudden and unexpected and that there was no prior notice that a physical fight would occur on the premises that night. Counsel states that the Courts have held that landlord's and innkeepers are not insurer's of a visitor's safety and that a bar owner has no duty to protect patrons against unforeseeable and unexpected assaults (citing Woolard v New Mohegan Diner, 258 AD2d 578 [2d Dept. 1999] and that an unexpected altercation between patrons which results in injury is not a situation which can reasonably be expected to be anticipated or prevented (citing Silver v Sheraton-Smithtown Inn, 121 AD2d 711 [2d Dept. 1986]. Here, counsel contends that the deposition testimony indicates that there had never been any physical fights in the bar and that without prior incidents involving the participants of this fight, any alleged altercation could not have been reasonably expected.

Counsel also contends that plaintiff assumed the risk of his injuries by participating in a fight that was occurring between his friends and Miff. Counsel states that plaintiff knowingly put himself in danger by approaching the area of the fight and swinging at Miff. Counsel states in this regard that plaintiff knew that when he participated in the fight by trying to swing at Miff, after Miff hit Shaz, the risks were obvious and apparent.

Counsel also contends that there is no support in the record to show that the incident was the result of negligent hiring as there was no evidence that Miff was working as a bouncer on the night of the incident as Sarita testified that the bar did not employ bouncers for at least a year prior to the incident. Counsel states there is no evidence in the record that the persons involved in the assault were employed by the bar at the time of the incident. Defense counsel also contends that the plaintiff has failed to show that the employer knew of facts that would lead a reasonable prudent person to conduct an investigation and failed to do so. Counsel states that the plaintiff has failed to show that defendant knew of the employee's propensity to commit the alleged act or that defendant should have known of such propensity had it conducted an adequate [*7]hiring procedure (citing Doe v Rohan, 17 AD3d 509 [2d Dept. 2005]). Counsel also states that plaintiff still has to prove that the act was foreseeable even if the employee was acting in the scope of his employment (citing Haddock v New York, 75 NY2d 478 [1990]).

In opposition to the motion, the plaintiff contends that the record establishes that he was struck by a bouncer employed by the establishment. Counsel contends that viewing the evidence in the light most favorable to the plaintiff and giving the plaintiff the benefit of every reasonable inference, the defendant is not entitled to summary judgment as both the plaintiff's affidavit and the plaintiff's deposition testimony raises questions of fact as to 1) whether the individual who assaulted the plaintiff was a bouncer employed by Scooby's on the date of the incident as opposed to a mere patron and 2) whether the plaintiff assumed the risk of his injuries by participating in the fight and 3)whether Scooby's made a prima facie case as to the lack of negligent hiring and retention.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. The failure of the moving party to make such a prima facie showing requires denial of the motion regardless of the insufficiency of the opposing papers (see Sheppard-Mobley v King, 10 AD3d 70[2d Dept. 2004]). Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v New York,49 NY2d 557[1980]).

For purposes of summary judgment, the opposing party's version of the facts must be accepted and viewed in the a light most favorable to them (see Pearson v Dix McBride, LLC, 63 AD3d 895 [2d Dept. 2009]; Rizk v Cohen, 73 NY2d 98 [1989]; Jablonski v Rapalje, 14 AD3d 484 [2d Dept. 2005]). "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" (Kolivas v Kirchoff, 14 AD3d 493[2d Dept. 2005]).

Here, viewing the evidence in a light most favorable to the plaintiff (see Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931 [2007]), this court finds that the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. [*8]

Although it is true as defendant argues that "the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults" (Woolard v New Mohegan Diner, 258 AD2d 578 [2d Dept. 1999]; Browne v GMRI, Inc., 6 AD3d 640[2d Dept. 2004]; Stafford v 6 Crannel St., Inc., 304 AD2d 997 [3d Dept. 2003]), it is alleged in the complaint that the assault in this case was carried out by an employee of the defendant's bar. An intentional tort, such as the assault alleged herein, allegedly committed by an employee, can result in liability for his employer, under respondeat superior if the employee was acting within the scope of the employment at the time of the commission of the tort (see Fernandez v Rustic Inn, Inc., 60 AD3d 893 [2d Dept. 2009]; Carnegie v J.P. Phillips, Inc., 28 AD3d 599 [2d Dept. 2006]). The employer need not have foreseen the precise act or manner of the injury as long as the general type of conduct may have been reasonably expected (see Ramos v. Jake Realty Co., 21 AD3d 744 [1st Dept. 2005] citing Riviello v Waldron, 47 NY2d 297 [1997]; White v Alkoutayni, 18 AD3d 540 [2d Dept. 2005]).

Here, the plaintiff presented testimony that the person who struck him was employed by the defendant as a bouncer on the night of the incident. Plaintiff testified that the individual checked people's identification and searched them prior to entering the bar. Accepting as true for the purposes of this motion the plaintiff's version of events, he stated that he was punched by a bouncer without justification and as such the bouncer's actions constituted an intentional assault. Plaintiff stated he was struck by the bouncer without provocation when he went to the aid of his friend Shaz.

Although Sarita testified that no bouncers were working on the night of the incident and only former bouncers were on the premises, the determination of which version of the facts is correct creates a question of credibility which should be left to the trier of fact for determination. "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" (Stukas v. Streiter, 83 AD3d 18 {2d Dept. 2011 quoting Kolivas v Kirchoff, 14 AD3d 493 [2d Dept. 2005]). "A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Ruiz v Griffin, 71 AD3d 1112[2d Dept. 2010] quoting Scott v Long Is. Power Auth., 294 AD2d 348 [2d Dept. 2002]; also see Benetatos v Comerford, 78 AD3d 750 [2d Dept. 2010]; Ramos v Rojas, 37 AD3d 291 (1st Dept. 2007]). [*9]

Therefore, this court finds that defendant has failed to establish, as a matter of law, that the person who struck the plaintiff was not an employee of the bar. The defendant did not submit any records or documents to show who was employed at the bar on the night of the incident. A triable issue of fact exists as to whether the alleged assailant of the plaintiff was Scooby's employee. In addition, assuming that the assailant was an employee, a question of fact exists as to whether the assailant was acting within the scope of his employment when he allegedly struck the plaintiff. There is also a question of fact as to whether plaintiff assumed the risk of his injuries as he testified that he was hit without justification of provocation.

Accordingly, for all of the aforesaid reasons and as the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, the defendant's motion for an order granting summary judgment and dismissing the plaintiff's complaint is denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

Dated: June 23, 2011

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.