At page 600 Reversing summary judgment on dram shop liability3 citing casesOrder, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered August 18, 2009, which, insofar as appealed from, granted defendant nightclub’s…
- Denenberg v. 268 W. 47th Rest., Inc., 211 A.D.3d 404 (N.Y. App. Div. 1st Dep't 2022).publishedCopacabana was not entitled to summary judgment dismissing the claim alleging violation of the Dram Shop Act (General Obligations Law § 11-101; Alcohol Beverage Control Law § 65 [2]), as it did not satisfy its initial burden of negating th…
- Hurtado v. Williams, 112 A.D.3d 1047 (N.Y. App. Div. 3d Dep't 2013).published Nor was the possibility ruled out that Williams was served by waitstaff when she was in the visibly intoxicated condition described by Ritter (see Cohen v Bread & Butter Entertainment LLC, 73 AD3d 600, 600-601 [2010]; McGovern v 4299 Katon…
At page 601 Rejection of intoxication defense without bartender testimony3 citing cases“We reject defendant’s argument that the assailant’s view of his own state of visible intoxication can serve to make out defendant’s burden on summary judgment.”
- Covert v. Wisla Corp., 130 A.D.3d 966 (N.Y. App. Div. 2d Dep't 2015).published Kukulski testified that the plaintiff’s assailant was already in the bar when he started tending bar and that he eventually stopped serving the assailant hours later because the assailant was visibly intoxicated (see Cohen v Bread & Butter…
- Ricaurte v. Inwood Beer Garden & Bistro Inc., 2018 NY Slip Op 7242 (N.Y. App. Div. 1st Dep't 2018).publishedThis evidence was sufficient to make out a prima facie showing that the assailant was not visibly intoxicated at the time he was served alcohol, since it is clear from the record that he was not served from that point in time until he atta…
Other citing cases
- Bauseman v. Pamdh Enters. Inc., 220 A.D.3d 561 (N.Y. App. Div. 1st Dep't 2023).published
v.
Bread & Butter Entertainment LLC, Trading as Ultra
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered August 18, 2009, which, insofar as appealed from, granted defendant nightclub’s motion for summary judgment dismissing as against it plaintiffs cause of action under the Dram Shop Act (General Obligations Law § 11-101), unanimously reversed, on the law, without costs, the motion denied, and such cause of action reinstated as against defendant nightclub.
Defendant’s motion papers fail to satisfy its initial burden of negating the possibility that it served alcohol to a visibly intoxicated person (see Darwish v City of New York, 287 AD2d 407 [2001]). The affidavit of its floor manager, that plaintiffs[*601] assailant exhibited no visible signs of intoxication when the manager observed him ordering and being served a drink at the bar earlier on the night of the altercation, does not mention a second drink that, the assailant testified, had been served to him at the bar that night. Merely because the manager observed the assailant being served the first drink does not rule out that the assailant was visibly intoxicated by the time he was served the second drink. We reject defendant’s argument that the assailant’s view of his own state of visible intoxication can serve to make out defendant’s burden on summary judgment. Furthermore, we note that defendant failed to supply affidavits from bartenders who were working on the night in question. Accordingly, the burden never shifted to plaintiff to adduce evidence that defendant served alcohol to the assailant despite visible signs of intoxication (see Duran v Poggio, 244 AD2d 162 [1997]; McGovern v 4299 Katonah, 5 AD3d 239, 239 [2004]). Concur—Saxe, J.P., Catterson, Renwick, Richter and Abdus-Salaam, JJ. [Prior Case History: 2009 NY Slip Op 31844(11).]