Defendants Sharon Hanafin, Hanafin Realty, LLC, and Michael Alexander's Restaurant, Inc. move for summary judgment dismissing the complaint and cross-claim.^[FN1] Plaintiff Joseph R. Morgan opposes the motion. Co-defendant Shawn Michael Williams appeared at motion term pro se, but did not submit any papers or argument in relation to the motion.^[FN2]

On January 1, 2007, at approximately 3:00 a.m., plaintiff, Joseph Morgan, was assaulted by defendant Shawn Williams at Alexander's Restaurant (hereinafter sometimes "Alexander's bar") located at 10 Lake Avenue in Binghamton, New York. Alexander's bar is owned by plaintiff's mother, defendant Sharon Hanafin. At the time of the assault, Sharon Hanafin was dating co-defendant Shawn Williams. In short, this action arises from a bar fight in which plaintiff was assaulted by his mother's boyfriend.

The court will summarize plaintiff's deposition testimony regarding the sequence of events on the night of December 31, 2006 into the early morning hours of January 1, 2007. Plaintiff went out for New Year's Eve with his then girlfriend, Rachel Kachadourian, and his sister, Nicole Morgan. The three started the evening celebrating at a local Binghamton bar called Liquid, but between 2:30 a.m. to 2:45 a.m. decided to go see plaintiff's mother at her bar.

They arrived at Alexander's bar at approximately 3:00 a.m.

Plaintiff testified in his deposition that upon walking into Alexander's bar "[m]y mom said, I - - what did she say — 'I don't want any problems.' And I said, 'Well, we just came to see you. I mean, I'm going to have — we're going to have one drink, and then we'll leave'" (Plaintiff's [*2]EBT, p 25).^[FN3] Plaintiff further testified that his mother stated "[t]hat [Williams] was drunk and intoxicated and that she did not want to have any problems" (EBT, p 26). In any event, plaintiff stated that when he entered Alexander's bar he saw Mr. Williams standing behind the bar, but neither acknowledged the other (EBT, pp 22-23). Plaintiff stated that his mother was behind the bar as well (EBT, p 29).

Plaintiff indicated he approached the bar and ordered a drink, while his two female companions went to the ladies room which was located down the hall from the bar. Shortly thereafter, plaintiff observed defendant Williams leave the bar area and walk down the hall into the men's room (EBT, p 31). Next, plaintiff saw Mr. Williams came out of men's room and walk towards the ladies room and "[o]bserved him kicking open the door of where the women's room was and where Rachel and my sister were in" while simultaneously yelling something indiscernible (EBT, p 33).

Plaintiff concedes that he immediately got up and started walking towards the hallway

and approached Mr. Williams yelling "Hey" (EBT, p 35). Plaintiff and Mr. Williams exchanged some words. Next, plaintiff testified that he was turning away from Mr. Williams when Mr. Williams punched him in the face and threatened to kill him (EBT, pp 36-37). Plaintiff and Mr. Williams then engaged in a fist fight (EBT, pp 39-40).

After being separated by other patrons, plaintiff went into the ladies rest room to see his face which he states was quite bloody. Plaintiff stated that he exited the ladies room and went back into the hallway and began yelling with his mother "look what your boyfriend did to my face" (EBT, p 41). At that point, plaintiff admits that he spit on Mr. Williams (EBT, p 41). In response, plaintiff alleges that Mr. Williams pulled a knife and came after him, and yelled "I'm going to fucking kill you" (EBT, pp 41, 46-47).

Plaintiff testified that he immediately ran back into the ladies room with his girlfriend and sister and they barricaded the door. Plaintiff stated that Mr. Williams continued "[p]ounding on the door, and I could hear him pounding and the knife was in his hand because I could hear the metal hitting off the metal door" (EBT, p 48). Simultaneously, Ms. Kachadourian had called plaintiff's step-father from her cell phone who in turned called the police. Plaintiff and his sister stayed barricaded in the ladies room until police arrived approximately five minutes later, but Ms. Kachadourian had exited the ladies room through a window. Plaintiff was treated at a local hospital for a broken nose and later underwent surgery for his injury.

On October 18, 2007, plaintiff commenced this action by the filing of a Summons with Notice and Complaint containing four causes of action. The first three causes of action are directed towards defendants Sharon Hanafin, Hanafin Realty, LLC, and Michael Alexander's Restaurant, Inc. (hereinafter sometimes jointly referred to as "defendants Hanafin") including [*3]failing to provide security to a patron and allowing an employee to pursue a patron with a deadly instrument, negligent supervision of employees, negligent hiring and retention of an employee, and common law negligence. The fourth cause of action is directed against co-defendant Shawn Williams for assault and battery.

On December 14, 2007, defendants Hanafin filed a joint Answer with Cross-Claim against co-defendant Williams.

On October 22, 2008, this court signed an Order denying a motion to dismiss the complaint as to defendant Michael Alexander's Restaurant, Inc. on jurisdictional grounds and granting plaintiff's motion to amend the caption.

On September 11, 2009, plaintiff filed a Note of Issue. This court scheduled a pre-trial conference for December 8, 2009, which was subsequently adjourned without date due to the filing of this motion. The court heard oral arguments on this motion on December 11, 2009.

A party moving for summary judgment "[m]ust make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once the party seeking summary judgment has made a prima facie showing of entitlement to judgment as a matter of law, the party opposing the motion must come forward with proof in evidentiary form establishing the existence of triable issues of fact or demonstrate an acceptable excuse for its failure to do so (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). While the court must accept the non-moving party's evidence as true and grant him every favorable inference (Hartford Ins. Co. v General Acc. Group Ins. Co., 177 AD2d 1046, 1047 [4th Dept 1991]), "[m]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise questions of fact (Zuckerman, 49 NY2d at 562).

A.Employment based theories of liability

"An employer may be vicariously liable for its employee's tortious acts on a theory of respondeat superior only if they were committed in furtherance of the employer's business and within the scope of employment [citation omitted]" (Bowman v State of New York, 10 AD3d 315, 316 [1st Dept 2004]). In instances where an employer cannot be held vicariously liable for an employee's torts, the employer can still be held liable under theories of negligent hiring and negligent supervision because the focus is on the adequacy of the employer's pre-employment investigation of the employee's background (Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159 [2nd Dept 1997], cert denied 522 U.S. 967 [1997], lv dismissed 91 NY2d 848). However, under either theory, it must be shown that there was an existing employer-employee relationship at the time of the alleged incident (K.I. v New York City Bd. of Educ., 256 AD2d 189, 191 [1st Dept 1998]).

Here, defendants Hanafin argue that Mr. Williams was not an employee at the time of this [*4]incident and had not worked at the bar for several months. In support of its position, defendants Hanafin offer the sworn Affidavit of Sharon Hanafin, in her capacity as the sole owner and operator of Hanafin Realty and Alexander's bar. The court finds that Ms. Hanafin's sworn affidavit is sufficient to meet defendants Hanafin's prima facie burden of establishing that Mr. Williams was not an employee at the time of this incident.

Thus, the burden shifts to plaintiff to come forward with proof in evidentiary form establishing the existence of triable issues of fact as to Mr. Williams' employment status. Plaintiff submits an affidavit from Rachel Kachadourian, plaintiff's then girlfriend, stating she witnessed Mr. Williams standing behind the bar serving drinks when they entered the bar. Plaintiff also avers that he saw Mr. Williams standing behind the bar (EBT, p 22).

The court must accept these statements from Ms. Kachadourian and plaintiff as true for purposes of this motion. Generally, the question of whether an employer-employee relationship exists is one of fact and depends on whether there is evidence of either control over the results achieved or over the means used to achieve those results (Matter of Rivera (State Line Delivery Serv.-Roberts), 69 NY2d 679, 682 [1986]). Here, however, plaintiff elected not to pursue evidence during the discovery phase of this litigation such as requesting employment documentation from defendants or deposing defendants Sharon Hanafin or Shawn Williams. The court finds that the mere siting of Mr. Williams behind the bar shortly before this incident is insufficient to raise questions of fact on whether Mr. Williams was an employee. Thus, the court finds that defendants Hanafin's motion seeking summary judgment dismissing the employment based theories of liability including respondeat superior and/or negligent hiring and supervision must be granted.

B.Negligence

Although not artfully pled, the court finds that this complaint is broad enough to contain a cause of action based upon common law negligence as against defendants Hanafin. In that regard, it is well-settled that owners of public establishments have the "[d]uty to act in a reasonable manner to prevent harm to those on their property [including] the duty to control the conduct of third persons on their premises when they have the opportunity to control such personal and are reasonably aware of the need for such control [citations omitted]" (D'Amico v Christie, 71 NY2d 76, 85 [1987]). That having been said, while the owner of a public establishment has a duty to act reasonably to control third persons so as to prevent harm to its patrons, there is "[n]o duty to protect patrons against unforeseeable and unexpected assaults [citations omitted]" (Woolard v New Mohegan Diner, 258 AD2d 578, 579 [2nd Dept 1999]; Stafford v 6 Crannel St., 304 AD2d 997 [3rd Dept 2003]).

The court finds that defendants Hanafin have failed to establish as a matter of law that this attack was unforeseeable and unexpected. The court finds questions of fact exist on the subject of what, if anything, Ms. Hanafin knew or should have known about Mr. Williams' propensities, his strained relationship with her son, and her awareness of the need of control over Mr. Williams based upon her notice of her son's pending arrival. Ms. Hanafin avers in her own [*5]affidavit that her son called after midnight and said he was coming over to the bar.^[FN4] Ms. Hanafin states she told plaintiff "[n]ot to come because I was going to be closing the Restaurant. Additionally, because Joe and Shawn-Michael generally avoided contact, I also told him that Shawn was there and he should not come (Hanafin Affidavit, ¶5; emphasis added). Moreover,

plaintiff testified in his deposition that upon entering the bar, that his mother stated that Mr. Williams "[w]as drunk and intoxicated and that she did not want to have any problems" (EBT, p 26; emphasis added).

Additionally, even if defendants Hanafin had met their burden, the court finds that plaintiff has raised questions of fact regarding what Ms. Hanafin knew or should have know regarding Mr. Williams' violent propensities. For instance, plaintiff has submitted portions of Mr. Williams' criminal history including an assault charge in 1992 that pre-dates this incident.^[FN5] Given that Mr. Williams was a former employee of Ms. Hanafin, as well as her then boyfriend, the court finds questions of fact as to whether Ms. Hanafin knew or should have known of his criminal history. Plaintiff also testified that his mother was aware of a prior threat made by Mr. Williams against him. More specifically, in June 2006, plaintiff stated that he was on the telephone with his mother when Mr. Williams "[w]as in the background telling me that he was going to kick my ass" (EBT, p 26). Taken together, the court finds that plaintiff has raised questions of fact as to whether defendants Hanafin, particularly Ms. Hanafin, acted in a reasonable manner to prevent harm to those on their property, had an opportunity to control such person and were reasonably aware of the need for such control. Stated another way, the court finds questions of fact as to whether Ms. Hanafin was in a position to anticipate or prevent the harm to the plaintiff.

Finally, defendants Hanafin argue that because this fight happened within one to two minutes of plaintiff's arrival at the bar, the fight was an unforeseeable and unexpected assault. However, the record reflects that Ms. Hanafin warned plaintiff on the phone that he should not come to the bar and, then upon his arrival, again warned plaintiff that Mr. Williams was intoxicated and she did not want any problems. In this court's view, these statements raise issues of fact as to whether this assault was, in fact, foreseeable by defendants Hanafin.

The court hereby reserves for trial defendants Hanafin's rights to raise issues such as assumption of the risk and/or comparative negligence.

Defendants Hanafin's motion for summary judgment dismissing plaintiff's complaint with respect to the employment based causes of action including respondeat superior and negligent hiring and supervision is GRANTED; and with respect to the negligence cause of action is DENIED. Plaintiff's assault and battery cause of action against co-defendant Mr. Williams and defendants Hanafin's cross-claim against Mr. Williams remain unaffected by this motion. The court will schedule a pre-trial conference to schedule a trial on the remaining causes of action.

This constitutes the order of the court.

Dated: January 21, 2010

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court