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7. RESULTADOS

7.6. T IPO DE B IORRESINA

1. Pre-Judgment Interest

Nine percent per annum. CPLR 5004 (2014).

2. Offer of Compromise

A defendant may offer the plaintiff judgment for a specific sum. CPLR 3221 (2014). The plaintiff may accept or refuse; the plaintiff’s acceptance results in judgment and closes the case. Id. If the plaintiff rejects the offer and then does no better at the time of the trial, the plaintiff loses costs from the time of the offer and must pay the defendant’s costs as of that time. Id.

F. SETTLEMENT PRACTICES

In New York, the notice of settlement procedure is very localized and may vary from county to county; however, the common aspect of the procedure is the settlement conference. A settlement conference is required to discuss material issues of the case. Attendance at the conference is mandatory. No awards are made as a result of settlement conferences, and if the matter is not settled, the case proceeds to trial.

NEW YORK

LIQUOR LIABILITY LAW SYNOPSIS

A. PROCEDURAL LAW

1. Time to Respond to Complaint

Contingent on the method of service the shortest time period to respond is twenty days from the return date to file the initial responsive pleading. CPLR 320 (2014).

2. Time for Plaintiff to Perfect Service of Process Upon Defendant

An action is commenced by filing a summons and complaint. CPLR 304 (2014). Service of the summons and complaint must be made within 120 days after commencement of the action. CPLR 306-b (2014). Process shall be returned to the Supreme Court within the time in which the defendant is allowed to answer. CPLR 306-a(a) (2014).

3. Notice/Statute of Limitations

An action to recover damages for a personal injury must be commenced within three years. CPLR 214 (2014).

4. Joint Tortfeasors/Joint and Several Liability

A statutory right of contribution exists between or among joint tortfeasors in accordance with their relative degrees of fault. CPLR 1401 (2014).

5. Caps on Liability

None.

B. LIABILITY

“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 visibly intoxicated person; Any

habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages.” N.Y. ALCO. BEV. CONT. LAW § 65 (2014).

C. TOLLING PROVISIONS

If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues, and the time otherwise limited for commencing the action is three years or more and expires no later than three years after the disability ceases, or the person under the disability dies, the time within which the action must be

commenced shall be extended to three years after the disability ceases or the person under the disability dies, whichever event first occurs; if the time otherwise limited is less than three years, the time shall be extended by the period of disability. The time within which the action must be commenced shall not be extended by this provision beyond ten years after the cause of action accrues, except, in any action other than for medical, dental or podiatric malpractice, where the person was under a disability due to infancy.

CPLR 208 (2014).

D. SUBSTANTIVE LAW

1. Minors

“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: 1. Any person, actually or apparently, under the age of twenty-one years . . . .” N.Y. ALCO. BEV. CONT. LAW § 65 (2014).

To find that a liquor licensee “caused or permitted” the service or delivery of

alcoholic beverages to a minor in violation of the Alcoholic Beverage Control Law, conduct must be “open, observable and of such nature that its continuance could, by the exercise of reasonable diligence, have been prevented.” Park II Villa Corp. v. New York State Liquor Auth., 529 N.Y.S.2d 370, 371 (1988) (citing 4373 Tavern Corp. v. New York State Liquor Auth., 377 N.Y.S.2d 135, 136 (1975)).

2. Imbibers

In Donato v. McLaughlin, the Court held that a tavern could not be held liable, under the Dram Shop Act, to the victim of an automobile accident caused by the tavern’s patron absent evidence that the patron was visibly intoxicated when he was served alcohol at the tavern and thus that any illegal sale took place. 599 N.Y.S.2d 754, 756 (1993). In order to sustain a claim under the Dram Shop Act, the plaintiff must show that the defendant vendor unlawfully sold alcoholic beverages to an intoxicated patron and the plaintiff must offer evidence that the party to whom liquor was sold acted or appeared to be intoxicated at time of sale. Nehme v. Joseph, 554 N.Y.S.2d 642, 643 (1990).

3. Assault and Battery Involving Drunken Patrons

In New York, a duty to protect one’s patrons arises once it is shown that the owner or business proprietor had reason to know of the likelihood of a criminal act occurring upon his property. Stevens v. Kirby, 450 N.Y.S.2d 607, 610 (1982). The test in New York for determining whether a landholder had reason to know of a criminal act is an expansive version of the “prior similar incidents” approach. Id. The owner of a public establishment has no duty to protect patrons from unforeseeable and unexpected assaults. Rishty v. DOM, Inc., 888 N.Y.S.2d 151, 152 (2009).

In Tyrrell v. Quigley, the Court stated the defendant was bound to use reasonable care to protect his patrons from injury at the hands of a vicious individual whom the tavern

knowingly permitted to be in and about the tavern. 60 N.Y.S.2d 821, 822 (1946). The plaintiff alleged he had been assaulted by a female patron in the defendant’s bar, and that such patron had been served intoxicating beverages by the defendant to the extent that she

became boisterous and “prone to violent action,” and that the defendant was aware of the patron’s reaction to intoxicating beverages. Id.

However, a bar patron who was injured as a result of a sudden and unexpected assault by unidentified assailants was not entitled to recover against the bar because the bar owner could not have reasonably anticipated or prevented the assault, and thus the owner could not be held liable for the patron’s injuries. Katekis v. Naut, Inc., 875 N.Y.S.2d 212, 214 (2009). Similarly, even if an anticipated presence of large crowds of young people consuming

alcohol at a club in early morning hours made a criminal attack on a patron by another patron foreseeable, so as to impose a duty on the club owner to take reasonable security measures to minimize danger, the plaintiff failed to prove that the defendant bar owner breached that duty where the owner took security measures against criminal attacks involving weapons (i.e., hiring state–licensed security guards who were present throughout the club in significant numbers, conducting pat downs, and operating metal detectors at the club’s entrance). Djurkovic v. Three Goodfellows, Inc., 767 N.Y.S.2d 108, 109 (2003).

E. SPECIAL DEFENSES

New York is a pure comparative state. CPLR 1411 (2014). A plaintiff can recover as long as he is not 100% at fault. Id. The plaintiff’s recovery damages are reduced in

accordance with his degree of fault. Id.

F. PRE-JUDGMENT INTEREST/ RESOLUTIONS

1. Pre-Judgment Interest

Nine percent per annum. NY CPLR 5004 (2014).

2. Offer of Compromise

G. SETTLEMENT PRACTICES

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