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A New Year’s Eve reveler who got booted out of the Marriott Marquis in New York’s Times Square last year and then drove his car into a tree can sustain a federal lawsuit against the hotel under a common law precept that innkeepers have a duty to provide safe harbor for their guests, a federal judge has held. Northern District of New York Judge Lawrence E. Kahn held that the hotel was arguably negligent for kicking Jeffrey Dagen of Albany County out of the hotel when it knew he had been drinking, that he was unlikely to find other lodging and that he was 150 miles from home without a place to stay. He refused to dismiss the case. “It was entirely foreseeable that Plaintiff’s next stop after being kicked out of the hotel wasn’t going to be on the set with Dick Clark filming ‘New York’s Rockin’ Eve,’” Judge Kahn wrote in Dagen v. Marriott International, 1:05-CV-1593. “Common sense and common courtesy hold that innkeepers are expected to shelter those who have sought their protection — and have a duty not to inject those same people into obviously dangerous situations.” The dispute began Dec. 31, 2004, when Dagen paid about $4,000 for two rooms at the New York Marriott Marquis with plans to stay that night and the night of Jan. 1, 2005. At around midnight, Dagen contends he found one of the female guests, who was staying in the second room, lying face down in the hallway. Police and paramedics were called for assistance. One of the hotel officials was advised that the woman had been involved in some sort of altercation with a male guest, and that the squabble led her to flee the room, after which she collapsed in the corridor. Michael Dominguez, director of loss prevention at the hotel, said in an affidavit that after consulting with police he decided that Dagen and all his guests should leave. Just before midnight, their guest privileges were revoked. Dagen allegedly complained that he had nowhere else to go, was too tired to drive home and had been drinking. On the way home, Dagen’s vehicle went off the Taconic Parkway and hit a tree. According to his attorney he shattered his leg and suffered chest injuries. Dagen responded with a $750,000 suit claiming breach of contract and negligence. On motion to dismiss, the Marriott argued that if Dagen made a choice to drive while intoxicated, the hotel chain had no duty to protect him from his own conduct. Judge Kahn agreed, but said that is not what this case is about. “As Defendants correctly note, if Plaintiff is arguing that a duty exists to protect Plaintiff from his voluntary intoxication, there is no claim that entitles him to relief,” Judge Kahn wrote. But the judge said the complaint is predicated not on the allegation that the Marriott neglected to protect Dagen from himself, but that they knew he had been consuming alcoholic beverages because they served them to him via room service, that they knew or should have known that other lodging would be impossible to find and that he had told them he was too tired to drive home. “Defendants knew that Plaintiff had consumed a large amount of alcohol, which they had served, and that Plaintiff was, if not drunk, certainly not in tip-top shape,” Judge Kahn wrote. “Furthermore, only the most incredulous would believe that Defendants, as hoteliers, did not know that Plaintiff was unlikely to locate alternate lodging in New York City on New Year’s Eve.” Richard P. Feirstein of Albany appeared for Dagen. Theresa B. Marangas of Wilson, Elser, Moskowitz, Edelman & Dicker in Albany is defending Marriott International. “The hotel operator under common law has a high obligation to protect its patrons,” Feirstein said. “Here, they threw somebody out at 11:30 at night in Times Square. There are no buses or trains at 11:30 at night, and it is cold, it is winter. I guess he could have joined Dick Clark, but that wasn’t on his mind at the time.” There was no immediate reaction from the Marriott.

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