FILED: BRONX COUNTY CLERK 07/07/ :27 AM INDEX NO /2016E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/07/2016

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1 FILED: BRONX COUNTY CLERK 07/07/ :27 AM INDEX NO /2016E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/07/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX x RONALD J. MASSAGLI, Plaintiff(s), -against- FELLA S BAR, AND EDWIN GONZALEZ, Defendant(s) x To the above named Defendant(s): Date Purchase: Index No.: Plaintiff designates BRONX County as the place of trial The basis of the venue is plaintiff's residence SUMMONS Plaintiff resides at 744 Revere Avenue Bronx, NY YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on Plaintiff's Attorneys within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: June 24, 2016 Defendants' addresses: FELLA S BAR 522 City Island Avenue Bronx, NY of 14

2 Yours, etc., JOSEPH VOZZA, ESQ. Attorney for Plaintiff 933 Mamaroneck Avenue Suite 103 Mamaroneck, New York (914) of 14 2

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX x RONALD J. MASSAGLI, Date Purchase: Plaintiff, Index No.: -against- FELLA S BAR, AND EDWIN GONZALEZ, VERIFIED COMPLAINT Defendants x Plaintiff complaining of the defendant herein, by his attorney, JOSEPH VOZZA, ESQ., alleges the following upon information and belief: 1. At all times hereinafter mentioned, the Plaintiff was and still is a resident of the State of New York, County of BRONX. 2. Upon information and belief, and at all times hereinafter mentioned, defendant, FELLA S BAR, was and still is a domestic corporation authorized to do business in the State of New York, County of Bronx. 3. Upon information and belief, and at all times hereinafter mentioned, defendant, FELLA S BAR, was and still is a partnership authorized to do business in the State of New York, County of Bronx. 4. Upon information and belief, and at all times 3 of 14 3

4 hereinafter mentioned, defendant, FELLA S BAR, was and still is a sole proprietorship authorized to do business in the State of New York, County of Bronx. 5. Upon information and belief, and at all times hereinafter mentioned, defendant, FELLA S BAR, was and still is a limited liability company authorized to do business in the State of New York, County of Bronx. 6. Upon information and belief, and at all times hereinafter mentioned, defendant, EDWIN GONZALEZ, was and still is a resident of the State of New York, County of Bronx. 7. Upon information and belief, and at all times hereinafter mentioned, defendant, FELLA S BAR, owned and operated a Bar known as Fella s located at 522 City Island Avenue, Bronx, New York, opened to the public, on or about December 31, 2015 and January 1, Upon information and belief, and at all times hereinafter mentioned, defendant, FELLA S BAR, operated a bar at 522 City Island Avenue, Bronx, New York, serving alcoholic beverages to its patrons, on or about December 31, 2015 through January 1, Upon information and belief, and at all times hereinafter mentioned, defendant, FELLA S BAR, on or about 4 of 14 4

5 December 31, 2015 through January 1, 2016, owed a duty to plaintiff, a patron at defendant s establishment, to provide adequate security. 10. That at all times hereinafter mentioned, defendant FELLA S BAR owed a duty to properly maintain, operate, manage and control the premises. 11. That at all times hereinafter mention, defendant FELLA S BAR owed a duty to supervise intoxicated patrons at its premises. 12. That at all times hereinafter mention, Defendant EDWIN GONZALEZ was a patron of defendant FELLA S BAR, on December 31, 2015 through January 1, That at all times hereinafter mention, Defendant EDWIN GONZALEZ, while a patron at defendant FELLA S BAR, on December 31, 2015 through January 1, 2016, did consume alcohol causing him to become extremely intoxicated, causing a danger to the plaintiff. 14. That at all times hereinafter mention, defendant, EDWIN GONZALEZ, while a patron at defendant FELLA S BAR, became aggressive and boisterous, and posed an immediate threat to plaintiff who was a lawful patron. 15. At all times hereinafter mentioned, defendant 5 of 14 5

6 FELLA S BAR, through its employees and agents, were aware of defendant EDWIN GONZALEZ S aggressive behavior, and continued to serve him alcoholic beverages. 16. That on or about January 1, 2016, between 4:30 and 5:00 am, plaintiff, while a patron at defendant FELLA S BAR, was assaulted by defendant EDWIN GONZALEZ, causing plaintiff to sustain serious and permanent bodily injuries. 17. That at all times hereinafter mention, the assault on plaintiff by defendant EDWIN GONZALEZ was unprovoked by plaintiff. AS AND FOR A FIRST CAUSE OF ACTION UNDER COMMON LAW NEGLIGENCE AS AGAINST FELLA S BAR 18. Plaintiff(s) repeat, reiterate and reallege each and every allegation contained in paragraphs numbered "1" through "17", inclusive with the same force and effect as set forth wholly and at length herein. 19. Upon information and belief, and at all times herein mentioned, said defendant failed to provide said plaintiff with a safe premises. 20. That the within described incident and resultant injuries to said plaintiff were caused wholly and 6 of 14 6

7 solely as a result of the negligence, carelessness and recklessness of the defendant FELLA S BAR, in the ownership, control, and management of the premises known as FELLA S BAR located at 522 City Island Avenue, Bronx, New York 10464, and no negligence on the part of the plaintiff contributed thereto. 21. The negligence of said defendant, as aforesaid, consisted of, but is not limited to the following: the negligence, carelessness and recklessness of the defendants, their agents, servants and or employees, in their ownership, management, maintenance and control of said premises; in failing to provide adequate security to the plaintiff; in failing to protect plaintiff from injury by other patrons; in failing to remove defendant EDWIN GONZALEZ from the premises prior to the attack on plaintiff; in failing to properly supervise patrons at its premises; in failing to adequately, regularly and properly inspect the premises; and in failing to keep said steps in an otherwise safe manner. 22. That upon information and belief, and at all times hereinafter mentioned, the plaintiff, as a result of said accident, has suffered permanent injuries and pain as well as psychological trauma and insomnia which continue to 7 of 14 7

8 the present and was rendered sick, sore, lame and disabled, has required medical care and attention, and has incurred the expenses of such medical care and treatment, and was prevented from pursuing his usual vocation and duties. 23. By reason of the foregoing, the plaintiff was caused to sustain serious and permanent injury, was caused to suffer and continues to suffer great pain and emotional distress and has been prevented from engaging in his household duties, normal pursuits, endeavors and activities, was hospitalized and requires and will continue to require care and treatment and has incurred and will continue to incur expenses, all in the sum that exceeds the lower court s jurisdiction. 24. That the accident occurred without any fault on the part of the plaintiff contributing thereto. 25. By reason of the foregoing, the plaintiff, RONALD J. MASSAGLI, has been damaged in the sum that exceeds the lower court s jurisdiction. AS AND FOR A SECOND CAUSE OF ACTION UNDER THE DRAM SHOP ACT AS AGAINST DEFENDANT FELLA S BAR 26. Plaintiff(s) repeat, reiterate and reallege each and every allegation contained in paragraphs numbered 8 of 14 8

9 "1" through "25", inclusive with the same force and effect as set forth wholly and at length herein. 27. On or about January 1, 2016, defendant FELLA S BAR, through its employees, did sell alcohol to defendant EDWIN GONZALEZ, while visibly intoxicated in violation of the General Obligation Law section That the illegal sale of alcohol by defendant FELLA S BAR, to defendant EDWIN GONZALEZ, caused defendant EDWIN GONZALEZ to become violent, and aggressive towards other patrons, including the plaintiff. 29. That as a direct result of intoxication of defendant EDWIN GONZALEZ by defendant FELLA S BAR, defendant EDWIN GONZALEZ did strike plaintiff s body, causing plaintiff to suffer serious and permanent injuries. 30. That defendant FELLA S BAR did violate the General Obligation Law section , by serving defendant EDWIN GONZALEZ alcohol while he was visibly intoxicated. 31.That as a result of said defendant s violation of the General Obligation Law section , plaintiff was caused to sustain serious and permanent injuries, causing him past and future pain and suffering. 9 of 14 9

10 32. By reason of the foregoing, the plaintiff, RONALD J. MASSAGLI, has been damaged in the sum that exceeds the lower court s jurisdiction. AS AND FOR A THIRD CAUSE OF ACTION AS AGAINST DEFENDANT EDWIN GONZALEZ 33. Plaintiff(s) repeat, reiterate and reallege each and every allegation contained in paragraphs numbered "1" through "32", inclusive with the same force and effect as set forth wholly and at length herein. 34. Upon information and belief, and at all times herein mentioned, defendant EDWIN GONZALEZ did strike and assault plaintiff while said premises owned, controlled, and managed by defendant FELLA S BAR & GRILL. 35. That the within described incident and resultant injuries to said plaintiff were caused wholly and solely as a result of the assault and battery by defendant EDWIN GONZALEZ. 36. That upon information and belief, and at all times hereinafter mentioned, the plaintiff, as a result of said accident, has suffered permanent injuries and pain as well as psychological trauma and insomnia which continue to the present and was rendered sick, sore, lame and disabled, has required medical care and attention, and has incurred the 10 of 14 10

11 expenses of such medical care and treatment, and was prevented from pursuing his usual vocation and duties. 37. By reason of the foregoing, the plaintiff was caused to sustain serious and permanent injury, was caused to suffer and continues to suffer great pain and emotional distress and has been prevented from engaging in his household duties, normal pursuits, endeavors and activities, was hospitalized and requires and will continue to require care and treatment and has incurred and will continue to incur expenses, all in the sum that exceeds the lower court s jurisdiction. 38. That the accident occurred without any fault on the part of the plaintiff contributing thereto. 39. By reason of the foregoing, the plaintiff, RONALD J. MASSAGLI, has been damaged in the sum that exceeds the lower court s jurisdiction. 11 of 14 11

12 WHEREFORE, plaintiff demands judgment against the defendants, in the sum that exceeds the lower courts jurisdiction, on each cause of action, and for such other and further relief as to this Court may seem just and proper. Dated: Mamaroneck, New York June 27, 2016 Yours, etc., JOSEPH VOZZA, ESQ. Attorney for Plaintiff 933 Mamaroneck Avenue Suite 103 Mamaroneck, NY (914) of 14 12

13 STATE OF NEW YORK ) ) SS.: COUNTY OF WESTCHESTER ) Pursuant to CPLR 2106 the undersigned affirms as follows: The undersigned is an attorney duly admitted to practice in the Courts of the State of New York, has read the attached pleading, believes its contents to be true based on information and investigation which has been made available to the undersigned and is verifying the pleading for Plaintiff, who resides outside the County in which I maintain my office. Dated: Mamaroneck, New York June 27, 2016 Yours, etc., JOSEPH VOZZA, ESQ. 13 of 14 13

14 Index #: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ================================================================= RONALD J. MASSAGLI, Plaintiff(s), -against- FELLA S BAR, AND EDWIN GONZALEZ, Defendant(s). ================================================================= SUMMONS AND VERIFIED COMPLAINT Pursuant to 22 NYCRR , the under, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous and that (1) if the annexed document is an initiating pleading, (i) the matter was not obtained through illegal conduct or that it was, the attorney or other persons responsible for the illegal conduct are not participating in the matter or sharing in any fees earned therefrom and that (ii) if the matter involves potential claims for personal injury or wrongful death, the matter was not obtained in violation of 22 NYCRR a. Dated: June 27, 2016 JOSEPH VOZZA, ESQ. Attorneys for Plaintiff 933 Mamaroneck Avenue, Suite 103 Mamaroneck, New York (914) Fax #: (914) JOSEPH VOZZA, ESQ. 14 of 14 14