| Aughenbaugh v Napper Tandy's of Northport |
| 2010 NY Slip Op 08052 [78 AD3d 745] |
| November 9, 2010 |
| Appellate Division, Second Department |
| Lani J. Aughenbaugh et al., Appellants, v Napper Tandy'sof Northport, Doing Business as Napper Tandy's, et al., Respondents. (And a Third-PartyAction.) |
—[*1] White Fleischner & Fino, LLP, New York, N.Y. (Jared H. Rabkin of counsel), for respondentParkstown, Inc., doing business as Napper Tandy's of Smithtown.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Suffolk County (Costello, J.), dated September 17, 2009, which grantedthe defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
The plaintiffs allege that they were involved in a collision with an intoxicated driver, whowas served alcohol by the defendants while he was in a "visibly intoxicated" condition, inviolation of General Obligations Law § 11-101 (1) (Alcoholic Beverage Control Law§ 65 [2]). After issue was joined, the defendants moved for summary judgment dismissingthe complaint based upon the deposition testimony of their bartender, who testified that at theend of her shift at 7:00 p.m. on the day of the accident, the driver did not appear to beintoxicated. Since the driver did not leave the defendants' establishment until more than an hourlater, and he continued drinking alcohol during that period, the defendants failed to establish theirentitlement to judgment as a matter of law (see Dugan v Olson, 74 AD3d 1131 [2010]; McGovern v 4299 Katonah, 5 AD3d239 [2004]; Smith v Blue Mtn. Inn, 255 AD2d 920 [1998]; Gray v Hedlund,244 AD2d 948 [1997]).
Accordingly, the Supreme Court should have denied the defendants' motion for summaryjudgment.
The defendants' remaining contentions either are without merit or need not be addressed inlight of our determination. Rivera, J.P., Chambers, Austin and Sgroi, JJ., concur. [Prior CaseHistory: 2009 NY Slip Op 32145(U).]