Basile v. Francino

253 A.D.2d 779, 677 N.Y.S.2d 595, 1998 N.Y. App. Div. LEXIS 9574

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 21, 1998
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff, the defendant Jennifer Francino, and the defendant New York Telephone Company separately appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated September 11, 1997, which granted the motion of the defendant Rail & Ale, Inc., d/b/a The Park Bench, for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the appeals by the defendants Jennifer Francino and New York Telephone Company are dismissed, as those defendants are not aggrieved by the order appealed from; and it is further,

Ordered that the order is affirmed; and it is farther,

Ordered that the respondent is awarded one bill of costs.

Although at the time of the incident the defendant Jennifer Francino was under the legal drinking age, and there was evidence that she had consumed alcohol, there was no evidence indicating that Francino was intoxicated. Therefore, the Supreme Court properly dismissed the plaintiffs cause of action alleging that the respondent violated the Dram Shop Act (see, General Obligations Law §§ 11-100, 11-101).

The plaintiffs remaining contentions are without merit. Miller, J. P., Altman, McGinity and Luciano, JJ., concur.