Montfort, Healy was successful in arguing that a bar was not entitled to summary judgment under General Obligations Law § 11-101, commonly known as the Dram Shop Act. The firm represented the driver of a vehicle that overturned and seriously injured the plaintiff. After the accident, the driver was found to have a blood alcohol content of .18%.
In moving for summary judgment dismissing the Dram Shop Act, the bar submitted unsigned transcripts of two witnesses who spent several hours with the driver at the bar before the accident. While the transcripts contained testimony that the driver was not visibly intoxicated when he left the bar, they were unsigned, and the Supreme Court denied the motion. The bar moved for leave to renew, and submitted signed copies of the transcripts. Finding that the missing signatures resulted from law office failure, the trial court granted leave to renew the motion for summary judgment and, upon renewal, dismissed the Dram Shop Act cause of action.
On appeal, the Second Department agreed that the failure to provide signed copies of the transcripts constituted “law office failure” and held that the Supreme Court properly granted renewal. However, the Second Department modified the order of the trial court by denying summary judgment.
The court stated that “to establish a cause of action under the Dram Shop Act, a plaintiff is required to prove that the defendant sold alcohol to a person who was visibly intoxicated at the time of the sale, and that the sale of that alcohol bore some reasonable or practical connection to the resulting damages.” (Pinilla v City of New York, 136 AD3d 774, 776-777; see General Obligations Law § 11-101). While the annexed deposition transcripts, along with other testimony, met the bar’s prima facie burden to establish the driver was not visibly intoxicated while a patron at the bar, the opposition provided by the plaintiff raised a triable issue of fact sufficient to defeat summary judgment.
The plaintiff provided a transcript of the driver’s plea of guilty to aggravated driving while intoxicated, along with other related crimes. At his plea, the driver admitted he remembered drinking “a few mixed drinks” before the accident, and further admitted that his blood alcohol content after the accident was .18%. In addition, the police report revealed that, at the time of arrest, the driver appeared to be intoxicated. While the bar argued that the police report should not be admissible, the bar had submitted the report with its reply papers on the original motion. Therefore, it waived any objection to its admissibility.
While viewing the facts in the light most favorable to the plaintiff, the Court found that the plaintiff raised a triable issue of fact as to whether the defendant was visibly intoxicated while he was a patron at the bar. The Second Department concluded by stating the trial court properly granted renewal, but upon renewal, the defendant bar’s motion for summary judgment should have been denied.
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