| Conklin v Travers |
| 2015 NY Slip Op 04802 [129 AD3d 765] |
| June 10, 2015 |
| Appellate Division, Second Department |
[*1]
| Debra Conklin, Appellant, v Ann Travers et al.,Defendants, and Legends Harborside, Ltd., Doing Business as Legends Restaurant, et al.,Respondents. |
Parker Waichman, LLP, Port Washington, N.Y. (Jay L. T. Breakstone, Brett A.Zekowski, and Gerard Ryan of counsel), for appellant.
Gallo Vitucci Klar LLP, New York, N.Y. (Chad E. Sjoquist of counsel), forrespondents.
In an action, inter alia, to recover damages pursuant to General Obligations Law§ 11-101, the plaintiff appeals, as limited by her brief, from so much of anorder of the Supreme Court, Suffolk County (Rebolini, J.), dated March 6, 2013, asgranted that branch of the motion of the defendants Legends Harborside, Ltd., doingbusiness as Legends Restaurant, and Legends Restaurant which was for summaryjudgment dismissing the cause of action alleging a violation of General Obligations Law§ 11-101 insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the motion of the defendants Legends Harborside, Ltd., doingbusiness as Legends Restaurant, and Legends Restaurant which was for summaryjudgment dismissing the cause of action alleging a violation of General Obligations Law§ 11-101 insofar as asserted against them is denied.
On the night of August 15, 2008, the plaintiff's decedent, Melissa Miller, whilewalking along a road in Cutchogue, sustained fatal injuries when she was struck by avehicle operated by the defendant Ann Travers. The plaintiff, Miller's mother and theadministrator of her estate, commenced this action against, among others, the defendantsLegends Harborside, Ltd., doing business as Legends Restaurant, and LegendsRestaurant (hereinafter together Legends), a restaurant and bar which Travers had visitedon the evening of the accident. The complaint alleged, inter alia, that Legends violatedGeneral Obligations Law § 11-101, commonly known as the Dram ShopAct, by continuing to serve Travers after she became visibly intoxicated. Legends moved,in pertinent part, for summary judgment dismissing the cause of action alleging aviolation of General Obligations Law § 11-101 insofar as asserted againstit.
In order to establish liability for a violation of General Obligations Law§ 11-101, "a plaintiff is required to prove, inter alia, that the defendant soldalcohol to a person who was visibly intoxicated" (Poppke v Portugese Am. Club of Mineola, 85 AD3d 751,751 [2011]; see Alcoholic Beverage Control Law § 65 [2]; GeneralObligations Law § 11-101; Sullivan v Mulinos of Westchester, Inc., 73 AD3d 1018,1019 [2010]). "Proof of visible intoxication can be established by circumstantialevidence, including expert and eyewitness testimony" (Poppke v Portugese Am. Clubof Mineola, 85 AD3d [*2]at 751; see Adamy vZiriakus, 92 NY2d 396, 401 [1998]; Romano v Stanley, 90 NY2d 444, 450[1997]).
In support of its motion for summary judgment, Legends submitted the transcript ofthe deposition testimony of several witnesses, who testified that Travers did not exhibitsigns of intoxication at the restaurant before the accident. However, it also submitted thetranscript of the deposition testimony of the police sergeant who arrested Travers afterthe accident. The sergeant testified at his deposition that Travers had alcohol on herbreath, slurred her speech, had bloodshot eyes, and was unsteady on her feet. Moreover,although Travers testified that she drank half a glass of wine at a friend's house afterleaving Legends, the friend denied that Travers consumed any alcohol at her place.
Viewing the facts in the light most favorable to the plaintiff, as the nonmoving party(see Vega v Restani Constr.Corp., 18 NY3d 499, 503 [2012]; Valentin v Parisio, 119 AD3d 854, 855 [2014]), weconclude that Legends' submissions revealed the existence of a triable issue of fact as towhether Travers was visibly intoxicated when she was served alcoholic beverages byLegends' employees (see Morrisv Bianna, Inc., 69 AD3d 910, 911 [2010]; Fiegl v 1695 Ridge Rd. WebsterInn Rest., 162 AD2d 1024, 1025 [1990]; Wasserman v Godoy, 136 AD2d631, 632 [1988]; see also Adamy v Ziriakus, 92 NY2d at 402-403; cf.Meizinger v Akin, 192 AD2d 1011, 1013-1014 [1993]).
Since Legends failed to meet its prima facie burden, the Supreme Court should havedenied that branch of Legends' motion which was for summary judgment dismissing thecause of action alleging a violation of General Obligations Law § 11-101,without regard to the sufficiency of the plaintiff's opposition papers (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]; Collado v Jiacono, 126 AD3d 927 [2015]). Mastro, J.P.,Skelos, Dickerson and LaSalle, JJ., concur.