The Plaintiff moves pursuant to CPLR §3212 for an order granting summary judgment as to the issue of the liability on behalf of the Defendant, The Dizzy Lizard, Inc., and directing an assessment of damages to be determined by a jury.
A New York DWI Lawyer said in this criminal action, the Plaintiff was injured in a motor vehicle accident, while he was a passenger in the automobile operated by the defendant, and owned by the co-defendant. Said accident occurred at approximately 1:45 a.m. when the vehicle collided with a train overpass. On the date of the accident, both parties were each 18 years of age. The defendant was arrested and charged with DWI in violation of Vehicle and Traffic Law § 1192.3. Prior to the subject accident, the Defendant was a patron of a tavern located somewhere in New York. As a result of the injuries sustained, the Plaintiff commenced the underlying action against individual defendants, based upon negligence and against the defendant tavern, predicated upon General Obligations Law§§ 11-100 and 11-101. The Plaintiff s instant application seeking summary judgment as to the liability of the defendant tavern thereafter ensued and is determined as set forth hereinafter.
A New York DWI Lawyer said in support of the within application, a New York Drunk Driving Lawyer said that that the record herein conclusively demonstrates that defendant was intoxicated at the time of the accident and that said intoxication was the direct result of the several hours he spent drinking at the tavern. In so arguing, counsel makes particular reference to the annexed police report, which states that defendant was charged with DWI at the time of the accident. Counsel additionally provides various pleadings attendant to a Federal Court action commenced against the tavern by an Insurance, which issued a series of liquor liability insurance policies to the Defendant. The Insurance Company sought rescission of three such policies based upon the tavern’s alleged misrepresentations in the applications for the insurance coverage. Counsel further points to several building violations, in connection to which tavern plead guilty to reduced charges, as well as to pleadings relating to other prior incidents involving the tavern, but which are not related to the within.
A Nassau County DWI Lawyer said the issue to be resolved in this case is a summary judgment should be ordered by the court based on the foregoing.
The Court ruled that It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. To obtain summary judgment, the moving party must establish it’s claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the Court, as a matter of law, to direct judgment in the movant’s favor. Such evidence may include deposition transcripts, as well as other proof annexed to an attorney’s affirmation.
If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. A motion for summary judgment is the procedural equivalent of a trial, and when entertaining such an application, the Court is not to determine matters of credibility, but rather is to confine it’s inquiry to determining whether material issues of fact exist.
As noted above, the Plaintiff is alleging theories of liability predicated upon the provisions embodied in General Obligations Law §§ 11-100 and 11-101. The Dram Shop Act, codified in General Obligations Law § 11-101, was promulgated by the legislature to create a private right of action which could be instituted against sellers of alcoholic beverages for injuries occasioned by the sale thereof.
Within the purview of these statutes, liability thereunder will attach upon the unlawful selling, furnishing or assisting in procuring of alcohol. The term unlawful is defined in Alcoholic Beverage Control Law as follows: “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 person, actually or apparently, under the age of twenty-one years” or to “any visibly intoxicated person” While the Alcohol Beverage Control Law defines the term “unlawful”, the provisions therein contained do not create an independent statutory cause of action and such actions are rather the progeny of General Obligations Law” At common law, one who provided intoxicating liquor was not liable for injuries caused by the drinker” and rather the drinker was held solely responsible for his or her own actions. Thus, as General Obligations Law are in derogation of common law principles, the statutes must be strictly construed and “be read narrowly and not enlarged beyond [their] borders”
In interpreting the statutory provisions, the Court of Appeals in one case has held that liability under General Obligations Law § § 11-100, “may be imposed only on a person who knowingly caused intoxication by furnishing alcohol to persons known or reasonably believed to be underage” The Court went on to state that “while section 11-101 does not explicitly refer to knowledge, that same requirement must be inferred because the legislative history makes plain that section 11-100 was intended to parallel the Dram Shop Act”
Further, within the particular context of General Obligations Law § 11-101, in order to establish a prima facie case of liability against the tavern, the Plaintiff bears the burden of proffering sufficient evidence that when the bar served alcohol to defendant, it was on notice that he was visibly under the influence thereof. Such evidence is not limited to direct proof in the form of testimonial evidence from an individual who witnessed the alleged intoxicated person at the moment the alcohol was provided, but may include circumstantial evidence to demonstrate the visible intoxication of such individual.
In the instant matter, the Court finds that the Plaintiff has failed to demonstrate his entitlement to judgment as a matter of law. As noted above, the Plaintiff has tendered proof in the form of pleadings attendant to other actions involving the tavern, the police report relevant to the subject accident, as well as limited portions of the depositions of the General Manger of the Defendant bar, and the Plaintiff. However, none of the purported evidence proffered unequivocally resolves the issues relevant herein.
With particular respect to the matter of defendant’s age, the annexed police report, while stating that Mr. Jones was indeed charged with DWI, is not dispositive as to the issue of whether the tavern knew that defendant was underage when he was served alcohol on the premises.
Thus, on the record as currently developed, there clearly exist questions of fact as to whether the tavern knew or reasonably believed defendant to be underage when he was served alcohol at said establishment. Accordingly, an order granting summary judgment as to the issue of the Defendant’s liability is inappropriate. As to the issue of defendant’s intoxication, there is absolutely no evidence, direct or circumstantial, proffered by the Plaintiff which establishes that when served alcohol at the tavern, defendant was visibly intoxicated.
Based upon the foregoing, the motion interposed by the Plaintiff, for an order granting summary judgment as to the issue of liability against defendant, the tavern, and setting the matter down for a trial as to the issue of damages is hereby DENIED.
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