| Dugan v Olson |
| 2010 NY Slip Op 05506 [74 AD3d 1131] |
| June 22, 2010 |
| Appellate Division, Second Department |
| Gregory Dugan, Respondent, v Brian Olson et al.,Defendants, and Minnesota's Grill & Bar, Appellant. |
—[*1] Dell, Little, Trovato & Vecere, LLP, Bohemia, N.Y. (Keri A. Wehrheim of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Minnesota's Grill & Barappeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County(Palmieri, J.), entered September 8, 2009, as denied that branch of its motion which was forsummary judgment dismissing the cause of action alleging a violation of General ObligationsLaw § 11-101 (1) insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Minnesota's Grill & Bar which was for summary judgmentdismissing the cause of action alleging a violation of General Obligations Law § 11-101(1) insofar as asserted against it is granted.
The plaintiff allegedly was injured as a result of an altercation with the defendant BrianOlson at approximately 1:45 a.m. on July 5, 2004. Olson testified during related criminalproceedings that, on July 4, 2004, he had dinner with his sister and a friend at an establishmentknown as the Tiki Bar, where he drank two bottles of beer. He testified further that he smokedmarijuana later in the evening, and then, between the hours of 11 p.m. and 1:45 a.m., heconsumed four or five bottles of beer at the defendant bar, Minnesota's Grill & Bar (hereinafterMG&B). Olson, his sister, Emily Sloan, and his friend, Alex Tulin, each testified at Olson'scriminal trial that he was not intoxicated when he left MG&B. According to the depositiontestimony of several witnesses, as Olson, Tulin, and Sloan were walking away from MG&B,they encountered the plaintiff on the street two blocks away, and a verbal altercation escalated,after which Olson picked up a glass bottle and struck the plaintiff over the head with it, causinginjuries.
The plaintiff commenced this action against, among others, MG&B, asserting, inter alia, acause of action alleging a violation of the Dram Shop Act (General Obligations Law §11-101) (hereinafter the Dram Shop Act cause of action). MG&B moved, among other things,for summary judgment dismissing that cause of action. The Supreme Court denied that branch ofthe motion which was for summary judgment dismissing the Dram Shop Act cause of actioninsofar as asserted against MG&B, concluding that MG&B had failed to establish, prima facie,that Olson was not [*2]visibly intoxicated when served alcohol atMG&B. MG&B appeals.
To establish a cause of action under New York's Dram Shop Act, a plaintiff is required toprove that the defendant sold alcohol to a person who was visibly intoxicated and that the sale ofthat alcohol bore some reasonable or practical connection to the resulting damages (see Sullivan v Mulinos of Westchester,Inc., 73 AD3d 1018 [2010]; McArdle v 123 Jackpot, Inc., 51 AD3d 743, 746 [2008];McNeill v Rugby Joe's, 298 AD2d 369, 370 [2002]; Adamy v Ziriakus, 231AD2d 80, 88 [1997], affd 92 NY2d 396 [1998]). Consequently, in order to establish itsentitlement to judgment as a matter of law dismissing the Dram Shop Act cause of action,MG&B was required to establish either that it did not serve alcohol to Olson while he wasvisibly intoxicated or that its sale of alcohol to him had no reasonable or practical connection tothe assault. MG&B met its burden in this regard by submitting the testimony of Sloan and Tulin,both of whom stated that Olson was not intoxicated when he left MG&B. That testimonyestablished, prima facie, that there was no causal connection between MG&B's service ofalcohol to Olson and Olson's infliction of injury upon the plaintiff (see Kaufman vQuickway, Inc., 14 NY3d 907, 908-909 [2010];Kelly v Fleet Bank, 271 AD2d 654, 655 [2000]). In opposition, the plaintiff failed toraise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch ofMG&B's motion which was for summary judgment dismissing the Dram Shop Act cause ofaction insofar as asserted against it. Fisher, J.P., Lott, Austin and Sgroi, JJ., concur.