| Baker v D.J. Stapleton, Inc. |
| 2007 NY Slip Op 06611 [43 AD3d 839] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Thomas H. Baker III, Respondent, v D.J. Stapleton, Inc.,Appellant. |
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In an action to recover damages for personal injuries pursuant to General Obligations Law§ 11-101, the defendant appeals from an order of the Supreme Court, Suffolk County(Burke, J.), entered August 17, 2006, which denied its motion for summary judgment dismissingthe complaint.
Ordered that the order is affirmed, with costs.
On a motion for summary judgment, the court's function is to determine whether materialfactual issues exist, not to resolve such issues (see Sillman v Twentieth Century-Fox FilmCorp., 3 NY2d 395, 404 [1957]; French v Cliff's Place, 125 AD2d 292 [1986]). Amotion for summary judgment "should not be granted where the facts are in dispute, whereconflicting inferences may be drawn from the evidence, or where there are issues of credibility"(Scott v Long Is. Power Auth., 294 AD2d 348 [2002]).
In this case, the defendant asserted that the plaintiff was precluded from recovering damagesunder the Dram Shop Act (see General Obligations Law § 11-101) because hecaused or procured the intoxication of the driver of the vehicle involved in the accident whichresulted in his alleged injuries (see Mitchell v The Shoals, Inc., 19 NY2d 338, 341[1967]). To make a prima facie showing of its entitlement to judgment as a matter of law, thedefendant was required to demonstrate that the plaintiff "play[ed] a much more affirmative rolethan that of drinking companion" to the driver of the vehicle (id.). In support of itsmotion for summary judgment, the defendant submitted deposition testimony which presentedissues of credibility, and from which conflicting inferences [*2]could be drawn with respect to the plaintiff's involvement in thedriver's intoxication. Accordingly, the Supreme Court properly determined that triable issues offact exist, requiring denial of the defendant's motion (see Jewell v Cumberland Farms,235 AD2d 397 [1997]; French v Cliff's Place, supra). Prudenti, P.J., Mastro, Angiolilloand Dickerson, JJ., concur.