| Morris v Bianna, Inc. |
| 2010 NY Slip Op 00656 [69 AD3d 910] |
| January 26, 2010 |
| Appellate Division, Second Department |
| David Morris, Respondent, v Bianna, Inc., Doing Businessas Rockin Robbins, Appellant, and Michael Penzo, Respondent. |
—[*1] Morelli Ratner, P.C., New York, N.Y. (Scott J. Kreppein of counsel), forplaintiff-respondent.
In an action to recover damages for personal injuries, the defendant Bianna, Inc., doingbusiness as Rockin Robbins, appeals, as limited by its brief, from so much of an order of theSupreme Court, Westchester County (Nicolai, J.), entered December 23, 2008, as denied thosebranches of its motion which were for summary judgment dismissing so much of the complaintas alleged that it violated General Obligations Law § 11-101 (1), and for summaryjudgment dismissing all cross claims insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable bythe plaintiff-respondent and the defendant-respondent.
On November 11, 2005, shortly after midnight, the defendant Michael Penzo stabbed theplaintiff in the abdomen with a knife, while both men were patrons of the appellant's bar inYonkers. The plaintiff subsequently commenced the present action, alleging, inter alia, that theincident was proximately caused by the appellant's violation of General Obligations Law §11-101 (1), also known as the Dram Shop Act. After issue was joined, the appellant moved forsummary judgment dismissing the complaint and all cross claims insofar as asserted against it.
"General Obligations Law § 11-101 (1) . . . provides that a party who'unlawfully' sells alcohol to another person is liable for injuries by reason of that person'sintoxication" (LaCatena v M.C. & E.D.Beck, Inc., 35 AD3d 388, 388 [2006]; see Romano v Stanley, 90 NY2d 444,447 [1997]). Alcoholic Beverage Control Law § 65 (2) states that it is unlawful to furnishan alcoholic beverage to any "visibly intoxicated person."
In opposition to the appellant's prima facie showing of entitlement to judgment as a matter oflaw, the plaintiff raised a triable issue of fact as to whether an employee of the appellantfurnished an alcoholic beverage to Penzo while he was "visibly intoxicated" by submitting, interalia, [*2]the deposition testimony of Paul DeLuca, the managerof the bar on the night of the occurrence (see CPLR 3212 [b]). Notably, DeLuca testifiedthat, when he observed Penzo shortly after he had stabbed the plaintiff, Penzo's speech wasslurred and his eyes were red and watery.
Accordingly, the Supreme Court properly denied those branches of the appellant's motionwhich were for summary judgment dismissing so much of the complaint as alleged that itviolated General Obligations Law § 11-101 (1), and for summary judgment dismissing allcross claims insofar as asserted against it. Prudenti, P.J., Covello, Lott and Sgroi, JJ., concur.