| Tunison v D.J. Stapleton, Inc. |
| 2007 NY Slip Op 06666 [43 AD3d 910] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Robert Tunison et al., Respondents, v D.J. Stapleton, Inc.,Doing Business as Napper Tandys, Appellant. |
—[*1] Tinari, O'Connell, Osborn & Kaufman, LLP, Central Islip, N.Y. (Frank A. Tinari of counsel),for respondents.
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(Doyle, J.), entered October 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 plaintiffs were precluded from recoveringdamages under the Dram Shop Act (see General Obligations Law § 11-101)because they caused or procured the intoxication of the driver of the vehicle involved in theaccident which resulted in their 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 amatter of law, the defendant was required to demonstrate, with respect to each plaintiff, that he orshe "play[ed] a much more affirmative role than that of [*2]drinking companion" to the driver of the vehicle (id.). Insupport of its motion for summary judgment, the defendant submitted deposition testimonywhich presented issues of credibility, and from which conflicting inferences could be drawn withrespect to each plaintiff's involvement in the driver's intoxication. Accordingly, the SupremeCourt properly determined that triable issues of fact exist, requiring denial of the defendant'smotion (see Jewell v Cumberland Farms, 235 AD2d 397 [1997]; French v Cliff'sPlace, supra). Prudenti, P.J., Mastro, Angiolillo and Dickerson, JJ., concur.