The following named papers numbered 1 to 18 were submitted on these four Motions on May 28, 2010:

Papers numbered

Notice of Motion and Affirmation (Seq. 2)1-2

Affirmation and Affidavit in Opposition3-4

Reply Affirmation5

Notice of Motion, Affirmation and Affidavits (2) (Seq. 3)6-9

Reply Affirmation10

Notice of Motion and Affirmation (Seq. 4)11-12

Memoranda of Law in Support and in Reply13-14

Notice of Motion and Affirmation (Seq. 5)15-16

Affidavit in Support17

Memorandum of Law in Support18

Defendants Frank and Joe Abruzzo move pursuant to CPLR §3212, for an order granting summary judgment dismissing the plaintiff's complaint, together with any and all cross-claims asserted against them (Sequence No.002).^[FN1] [*2]

Defendant City of Glen Cove moves pursuant to CPLR §3212, for an order dismissing the plaintiff's complaint, together with any and all cross-claims asserted against it (Sequence #003).

Defendant Management Solutions, Ltd. moves pursuant to CPLR §3212, for an order granting summary judgment dismissing the plaintiff's complaint, together with any and all cross-claims asserted against it (Sequence #004).

Defendants, the Herb Hill Management Group, Inc., Herb Hill Holdings, LLC, and Herb Hill Leasing, LLC move pursuant to CPLR §3212, for an order granting summary judgment and dismissing the plaintiff's complaint, together with any and all cross-claims asserted against it (Sequence #005).

On the evening of June 17, 2006 into the early morning hours of June 18, 2006, the plaintiff, Sean Basdavanos, was employed by defendant, Herb Hill Management Group, Inc., in the capacity of a bouncer at Soundview Restaurant and Bar [hereinafter Soundview] (see Basdavanos Affidavit in Opposition at¶¶3,4). Soundview was operated by defendant Longstem Restaurant, Inc. (and its principal Mike Stemcosky)^[FN2], which had a lease with the City of Glen Cove (see Goerlich Affirmation in Support at Exh. at Exh. B at ¶6,7). In or about December 29, 2005, defendant Management Solutions, Ltd. [hereinafter Management Solutions] executed an Assignment and Assumption of Lease with the City of Glen Cove, whereby Management Solutions assumed Longstem's lease (see O'Callaghan Affirmation in Support at ¶6,7).

On the night and morning in issue, defendants Sayed Khaled El-Waraky and Joe Abruzzo were patrons at the Soundview and were there to celebrate Abruzzo's 21st birthday (see Meehan Affirmation in Support at Exh. K). At some point during the course of the evening, defendant El-Waraky became involved with an altercation with a female patron at Soundview and was thereafter escorted from the premises by the plaintiff (id. at Exh. I). Subsequent thereto at approximately 2:45 a.m., El-Waraky proceeded to get into a 2005 Jaguar, leased by his father, Sayed Abdel El-Wara, and owned by by defendant Cab East, LLC, and struck several individuals including the plaintiff (see Goerlich Affirmation in Support at Exh. A at ¶¶1,4). The parking lot in which the accident occurred is owned by defendant City of Glen Cove, and is connected or adjacent to Soundview (id. at ¶2; see also Exh. B at ¶17). It is undisputed by the parties that at the time of the accident, Sayed Khaled El-Waraky was intoxicated (see Goerlich Affirmation in Support at ¶3; see also Meehan Affirmation in Support at Exh. L at p. 92).

The plaintiff commenced the underlying action to recover damages for the injuries he sustained as a result of the subject accident. The applications respectively interposed by the moving defendants thereafter ensued and are determined as set forth hereinafter.

Motion by Management Solutions [*3]

As articulated in the Bill of Particulars, the plaintiff alleges that Management Solutions has violated "certain sections of the Alcohol and Beverage Law and General Obligations Law" by having "sold, served and supplied alcohol to an intoxicated and under aged individual", to wit: Sayed Khaled El- Waraky (see O'Callaghan Affirmation in Support at Exh. C).

In support of the within application, counsel for the defendant argues that Management Solutions was only a leaseholder of subject premises, which did not sell alcohol to El-Waraky, and that any liquor which was provided to Mr. El-Waraky was done so by defendant Longstem (see O'Callaghan Affirmation in Support at ¶4). Counsel further asserts that Management Solutions did not hold a liquor license, did not hire any of the bartenders employed at Soundview and did not collect any revenue from the sale of liquor and accordingly cannot be held liable under General Obligations Law §§11-100 and 11-101, thus warranting dismissal of the within complaint, as well as any and all cross-claims (id. at ¶¶4,12,13; see also Defendant's Memorandum of Law at pp. 2,5, 6,7,8).

In support of said contentions, counsel relies upon the deposition testimony of Mr. Joseph Graziose, President of Management Solutions, who testified that other than the bouncers, as well as some staff in the kitchen, the bartenders and the wait staff were "employed through Longstem" and that Soundview was being operated by Longstem under its liquor license (see Defendants Memorandum of Law at pp. 6,7; see also O'Callaghan Affirmation in Support at Exh. E at pp. 53-55).

Counsel further argues that notwithstanding the assumption of Longstem's lease by Management Solutions, it was Longstem which continued to operate the bar and that the primary responsibilities undertaken by Management Solutions were to pay overdue rent and to undertake needed and significant capital improvements with regard to the subject premises (see O' Callaghan Reply Affirmation at ¶¶4,5,6; see also Exh. A).

In opposition, counsel for the plaintiff argues that subsequent to Management Solutions assuming the lease from Longstem, it sold liquor without a license and improperly utilized the license actually issued to Longstem, the usage of which constitutes a violation of the Alcoholic, Beverage Control Law (see Lisabeth Affirmation in Opposition at ¶9). Counsel further argues that the portions of the deposition testimony of Joseph Graziose, wherein he stated that he would "have the authority" to tell Longstem how the bar was going to be operated, clearly demonstrates that Management Solutions was more than a mere leaseholder on the subject premises and rather exercised dominion and control over the day to day operations of the bar, thus subjecting it to liability under General Obligations Law §§11-100 and 11-101 (id. at ¶¶4,9,10,14,15,20).

Standard for Summary Judgment

It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact (Sillman v Twentieth Century Fox, 3 NY2d 395 [1957]; Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Bhatti v Roche, 140 AD2d 660 [2d Dept 1998]). To obtain summary judgment, the moving party must establish its claim or defense by tendering proof, in admissible form, sufficient to warrant the Court, as a matter of law, to direct judgment in the movant's favor (Friends of [*4]Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065 [1979]). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation (CPLR 3212 [b]; Olan v Farrell Lines, 64 NY2d 1092 [1985]).

If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial (Zuckerman v City of New York, supra at 49 NY2d 557).

In opposing a motion for summary judgment, it is well settled that "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat the application (id. at 562). A motion for summary judgment is the procedural equivalent of a trial, and when entertaining such an application, the Court is not to determine matters of credibility, but rather is to confine its inquiry to determining whether material issues of fact exist (S.J. Capelin Associates, Inc. v Globe Mfg. Corp., 34 NY2d 338 [1974];Sillman v Twentieth Century Fox, supra at 3 NY2d 395).

As noted above, the plaintiff is alleging theories of liability predicated upon the provisions embodied in General Obligations Law §§11-100 and 11-101 (see O'Callaghan Affirmation in Support at Exh. C; see also Lisabeth Affirmation in Opposition at ¶4). The Dram Shop Act, codified in General Obligations Law §11-101, was promulgated by the legislature to create a private right of action which could be instituted against sellers of alcoholic beverages for injuries occasioned by the sale thereof (Sherman v Robinson, 80 NY2d 483 [1992]). The statute provides the following:

Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.

The Dram Shop Act was ultimately followed by the enactment of General Obligations Law §11-100, which created liability upon the gratuitous providers of liquor to minors, irrespective of whether or not the providing of such liquor was accompanied by an actual sale (id.). General Obligations Law §11-100 provides the following:

Any person who shall be injured in person, property, means of support or otherwise, by reason of the intoxication or impairment of ability of any person under the age of twenty-one years, whether resulting in his death or not, shall have a right of action to recover actual damages against any person who knowingly causes such intoxication or impairment of ability by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for such person with knowledge or reasonable cause to believe that such person was under the age of twenty-one years.

Within the purview of these statutes, liability thereunder will attach upon the unlawful "selling", "furnishing" or "assisting in procuring" of alcohol (Sherman v Robinson, supra at 80 NY2d 483;General Obligations Law §§ 11-100[1],11-101[1]). The term "unlawful" is defined in Alcoholic Beverage Control Law as follows: "No person shall sell, deliver, or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to any person, actually or apparently, under the age of twenty-one years" or to "any visibly intoxicated person" [*5](Alcohol Beverage Control Law §65[1],[2]). While the Alcoholic Beverage Control Law defines the term "unlawful", the provisions therein contained do not create an independent statutory cause of action and such actions are rather the progeny of General Obligations Law §§ 11-100[1],11-101[1] (Sherman v Robinson, supra; Carr v Kaifler, 195 AD2d 584 [2d Dept 1993]; Sullivan v Mulinos of Westchester, Inc., 2010 WL 1999575 [2d Dept 2010]). In interpreting the statutory provisions, the Court of Appeals has held that liability thereunder "attaches only in the event of an unlawful' sale or delivery of alcohol" (Sherman v Robinson, supra at 80 NY2d 487).

"At common law, one who provided intoxicating liquor was not liable for injuries caused by the drinker" and rather the drinker was held solely responsible for his or her own actions (D'Amico v Christie, 71 NY2d 76 [1987]). Thus, as General Obligations Law §§ 11-100[1],11-101[1] are in derogation of common law principles, the statutes must be strictly construed and "be read narrowly and not enlarged beyond [their] borders" (id.; Sherman v Robinson, supra at 80 NY2d 487; Senn v Scudieri, 165 AD2d 346 [1st Dept 1991]).

In the instant matter, the Court finds that Management Solutions, via the introduction of the deposition testimony of Mr. Graziose, has demonstrated its prima facie case of entitlement to judgment as a matter of law (Friends of Animals, Inc. v Associated Fur Mfrs., Inc., supra at 46 NY2d 1065). However, upon review of the record, the Court also finds that the plaintiff has raised material issues of fact as to whether Management Solutions aided in the sale, delivery or procurement of alcohol to defendant Sayed Khaled El-Waraky (Sherman v Robinson, supra at 80 NY2d 483). Here, while Mr. Graziose testified that when making decisions "from an operations standpoint", he "looked to Longstem" and that the bar staff at Soundview were all employed by Longstem. He also testified that "both" he and Mike Stemcosky determined how the bar was going to be operated (id.). Additionally, the plaintiff, Sean Basdavanos, testified that at the time of the subject incident, both Joseph Graziose, as well as his son, Joseph Graziose III, were present and that the latter was functioning as manager of the Soundview. Further, the plaintiff's testimony is echoed by that of defendant, Joe Abruzzo, who stated that Joseph Graziose III informed him that he was the "manager" of the bar and reported to his father, Joseph Graziose (id.; Senn v Scudieri, 165 AD2d 346 [1st Dept 1991]).

Thus, based upon the foregoing, the application by defendant, Management Solutions, Ltd., interposed pursuant to CPLR §3212, for an order granting summary judgment dismissing the plaintiff's complaint, together with any and all cross-claims asserted against it, is hereby DENIED. (Sequence#004).

Motion by The City of Glen Cove ^[FN3]

In support of the within application, counsel for the City of Glen Cove [hereinafter the City] argues that said defendant is an out-of-possession landlord which did not own, operate, manage, control or supervise the Soundview, and which neither sold nor provided liquor to Sayed Khaled El-Waraky, thus warranting dismissal of the plaintiff's claims predicated upon the General Obligations [*6]Law (see Meehan Affirmation in Support at ¶¶5,23,24,25,27,30,31,35). Counsel provides the affidavit of Ralph V. Suozzi, Mayor of the City of Glen Cove, who avers, inter alia, that based upon his personal familiarity with the terms of the lease, "the City is an out of possession landlord with respect to Soundview" which "has no business relationship with Management Solutions, Ltd. other than that of landlord and tenant" (id. at Exh. M at ¶¶4,5). Mr. Suozzi further states that the "City does not own, operate, manage, control, supervise or otherwise oversee the daily operations of Soundview" and on June 17, 2006 and June 18, 2006, the City "was not involved" and "had no knowledge" with respect to the sale of alcohol to any individuals on said dates and did not receive any profits from any sale thereof (id. at ¶¶7,8,9,11). In addition to the foregoing, counsel additionally makes reference to the portions of the deposition testimony of Mr. Graziose, wherein he stated that no one from the City ever directed or supervised the day to day operations of Soundview with respect to the amount of alcohol served (id. at ¶26).

In opposition, counsel for the plaintiff argues that there exists a "special business relationship" by and between the City and Management Solutions, thereby subjecting the City to liability (see Lisabeth Affidavit in Opposition at ¶¶22,23,24). Specifically, counsel argues that in accordance with the lease between Management Solutions and the City, the latter benefitted financially when catered events were held at Soundview and that by virtue of this financial interest, there exists an agency relationship between the two entities thereby exposing the City to liability under General Obligations Law §§ 11-100, 11-101 (id.).

In the instant matter, having reviewed the record, the Court finds that the City has demonstrated its entitlement to judgment as a matter of law, in opposition to which the plaintiff has failed to demonstrate the existence of a material issue of fact (Friends of Animals, Inc. v Associated Fur Mfrs., Inc., supra at 46 NY2d 1065). As a general proposition, "an out-of-possession landlord cannot be held liable for injuries occurring on the premises unless he or she has retained control over the premises or over the operation of the business conducted on the property" (Archie v Ma's & Papa Joe's, Inc., 70 AD3d 985 [2d Dept 2010]). Here, the Suozzi affidavit and the averments therein contained establish that Glen Cove did not exercise any control over the business operated at Soundview (id.; see also Borelli v 1051 Realty Corp., 242 AD2d 517 [2d Dept 1997]). Such averments are consistent with the deposition testimony, Mr. Graziose, who testified that no individual from the City supervised the daily operations of the Soundview (id.)

Moreover, the plaintiff's contention, offered in opposition, that there exists an agency relationship between Management Solutions, Ltd. and the City is unpersuasive. "Agency is the fiduciary relationship that arises when on person (a principal') manifests assent to another person (an agent') that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act"(Restatement [Third] of Agency § 1.01). In the matter sub judice, there is no evidence that Management Solutions, as tenant under the lease with the City, was acting under the City's control or was receiving either direction or supervision therefrom, or that it was acting on the City's behalf.

Based upon the foregoing, the application by the defendant, the City of Glen Cove, interposed pursuant to CPLR §3212, for an order dismissing the plaintiff's complaint, together with any and all cross-claims asserted against it, is hereby GRANTED (Sequence #003).

Motion by Herb Hill Management Group Inc., Herb Hill Holdings, LLC and Herb Hill Leasing, LLC [*7]

The Court now addresses the application interposed by Herb Hill Management Group, Inc., Herb Hill Holdings, LLC and Herb Hill Leasing, LLC, which seeks dismissal of the within action. A review of the complaint reveals that the plaintiff alleges that said defendants failed to provide proper workers' compensation insurance and violated the Alcoholic Beverage Control Law (see Schlossberg Affirmation in Support at ¶5; see also Exh. A).

In support of the within application, counsel provides the affidavit of Mr. Joseph Graziose, President of the corporate defendants ^[FN4], who avers that neither Herb Hill Holdings, LLC nor Herb Hill Leasing, LLC, had any interest in either the premises or the business of Soundview (id. at ¶9; see also Graziose Affidavit in Support at ¶¶5,6,7). As to Herb Hill Management Group, Inc., Mr. Graziose states that said defendant was the plaintiff's employer and that the Workers' Compensation Board determined that said defendant properly possessed valid compensation coverage and that the plaintiff was found to be entitled to benefits thereunder (see Graziose Affidavit in Support ¶¶8 -14; see also Exhs. G, H).

In the Affirmation in Opposition, counsel for the plaintiff states that "it is unnecessary to consider the summary judgment motion by HERB HILL MANAGEMENT GROUP, INC." (see Lisabeth Affirmation in Opposition at ¶¶1, 28). Further, in examining the entirety of the opposing affirmation, no arguments were posited with respect to defendants, Herb Hill Holdings, LLC and Herb Hill Leasing, LLC, both of which also moved for affirmative relief herein (id.). However, while the within application is unopposed by plaintiff's counsel, inasmuch as the plaintiff has not formally withdrawn the action against said defendants, and given that this motion is still pending, the Court will nonetheless address the application.

Having reviewed the evidence provided by the moving defendants, the Court finds that they have demonstrated their entitlement to judgment as a matter of law (Alvarez v Prospect Hospital, supra at 68 NY2d 320). As to Herb Hill Holdings, LLC and Herb Hill Leasing, LLC, the averments of Mr. Graziose that said entities did not have any interest in the business conducted by Soundview or in the premises upon which it was located are not, in any respect, contested or disputed by the plaintiff (Zuckerman v City of New York, supra at 49 NY2d 557). Additionally, and with regard to Herb Hill Management Group, Inc., both the Graziose affidavit, as well as the documents from the Workers' Compensation Board, annexed to the defendants' moving papers, unequivocally demonstrate that said defendant had a valid and active policy of workers' compensation insurance under which the plaintiff received benefits.

Based upon the foregoing, the application by defendants Herb Hill Management Group, Inc., Herb Hill Holdings, LLC and Herb Hill Leasing, LLC, interposed pursuant to CPLR §3212, for an order granting summary judgment dismissing the plaintiff's complaint, together with any and all cross-claims asserted against it, is hereby GRANTED (Sequence #005).

This constitutes the Decision and Order of the Court.

Dated: Mineola, New York

January 11, 2011

E N T E R :

_________________________________

Joel K. Asarch, J.S.C.

Copies mailed to:

Law Office of Jeffrey A. Lisabeth

Attorneys for Plaintiff

Condon, Flaherty, O'Callahan, Reid,

Donlon, Travis & Fishlinger, PC

Attorneys for Defendant Management Solutions

Quadrino Schwartz, Esqs.

Attorneys for Defendants Herb Hill

Kevin Keating, Esq.

Attorney for Defendants El-Waraky and El-Wara

Paganni, Gambeski, Nashak. Cioci & Farole, Esqs.

Attorneys for Defendants Abruzzo

Sokoloff, Stern, LLP

Attorneys for Defendant City

Longstem Restaurant, Inc., Defendant

c/o Michael Stemcosky