NEW YORK (CBSNewYork) — A Chelsea nightclub is partly responsible for an MTA bus driver’s death because it continued to serve the man’s alleged killer drinks just before he drunkenly rammed a stolen delivery truck into the bus, the victim’s family will allege in a lawsuit.

William Pena’s relatives are suing the nightclub 1 Oak, where Dominic Whilby, 22, of Griffin, Ga., was partying before the Feb. 12 accident.

The family’s lawyer, Sanford Rubenstein, said the club may have violated New York’s Dram Shop Act, which prohibits the sale of alcohol to anyone who is visibly intoxicated.

Whilby’s blood-alcohol level was twice the legal limit when he collided with the city bus at West 14th Street and Seventh Avenue, killing Pena and injuring several others, police said.

Pena was in the wrong place at the wrong time, his widow, Nancy Rodriguez said.

“If he would have been 30 seconds early or 30 second late, he would have still been here with us,” she said.

Whilby, a nephew of model Tyson Beckford, has been charged with vehicular manslaughter, grand larceny, criminal possession of stolen property and felony assault.

The impact of the collision was so strong it sent both vehicles crashing into a building and several parked cars. The scaffolding that was in front of the building collapsed onto the wreckage.

Pena was ejected from the bus. He was pronounced dead at the scene.

Pena was the first MTA bus driver killed in a collision in more than 14 years, the agency said.

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