| Poppke v Portugese Am. Club of Mineola |
| 2011 NY Slip Op 05038 [85 AD3d 751] |
| June 7, 2011 |
| Appellate Division, Second Department |
| Theresa Poppke, Respondent, v Portugese American Clubof Mineola et al., Appellants, et al., Defendant. |
—[*1] Paul S. Ehrlich, Riverhead, N.Y., for appellant Mineola Portuguese Center, Inc. Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Stephen C. Glasser andSusan M. Jaffe of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Portugese AmericanClub of Mineola appeals, as limited by its brief, from so much of an order of the Supreme Court,Nassau County (Feinman, J.), dated July 27, 2010, as denied that branch of its motion which wasfor summary judgment dismissing the complaint insofar as asserted against it, and the defendantMineola Portuguese Center, Inc., separately appeals, as limited by its brief, from so much of thesame order as denied that branch of its cross motion which was for summary judgmentdismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed, with one bill of costs.
In order to establish entitlement to recovery pursuant to a cause of action under GeneralObligations Law § 11-101 (1), a plaintiff is required to prove, inter alia, that the defendantsold alcohol to a person who was visibly intoxicated (see Adamy v Ziriakus, 92 NY2d396, 400 [1998]; Romano v Stanley, 90 NY2d 444, 447 [1997]; Kelly v FleetBank, 271 AD2d 654, 655 [2000]). Proof of visible intoxication can be established bycircumstantial evidence, including expert and eyewitness testimony (see Kish v Farley, 24 AD3d 1198,1200 [2005]; Kelly v Fleet Bank, 271 AD2d at 655; Roy v Volonino, 262 AD2d546, 547 [1999]).
Contrary to their contentions, the defendants Portugese American Club of Mineola(hereinafter the Club) and the Mineola Portuguese Center, Inc. (hereinafter the Center), failed tomeet their respective burdens of demonstrating, prima facie, that the driver of the vehicle whichstruck the plaintiff was not visibly intoxicated when sold alcohol (see Aughenbaugh v Napper Tandy's ofNorthport, 78 AD3d 745, 746 [2010]; McGovern v 4299 Katonah, 5 AD3d 239, 240 [2004]; Smith vBlue Mtn. Inn, 255 AD2d 920 [1998]). The Center's remaining contention is without merit.Consequently, the Supreme Court properly denied the respective branches of the motion andcross motion of the Club and the Center which were for summary judgment dismissing thecomplaint insofar as asserted [*2]against each of them, regardlessof the sufficiency of the plaintiff's opposition papers (see Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]). Covello, J.P., Leventhal, Lott and Miller, JJ., concur.