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FILIBERTO v. HERK'S TAVERN, INC.

259 A.D.2d 917 (1999)

686 N.Y.S.2d 886

MARGARET FILIBERTO, Individually and as Mother and Guardian of PATRICK FILIBERTO, an Infant, and as Administrator of the Estate of THOMAS R. FILIBERTO, Deceased, Respondent, v. HERK'S TAVERN, INC., et al., Defendants, and MJM DINER, INC., Doing Business as AMSTERDAM DINER, Appellant.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided March 18, 1999.

Graffeo, J.

Thomas R. Filiberto (hereinafter decedent) spent the early morning hours of December 27, 1991 consuming alcoholic beverages at Herk's Tavern located in the City of Amsterdam, Montgomery County. When the tavern closed at 4:00 A.M., defendant Philip R. Bracchi, the tavern's proprietor, drove decedent to MJM Diner to eat. A waitress served the men two hot roast beef sandwiches and green beans and while decedent was consuming his food, he stopped breathing...

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