Blomberg v. C.N.M. Rose Lounge, Inc.

77 A.D.3d 873, 909 N.Y.S.2d 640

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 2010
• Status: Published

Opinion

In a consolidated action to recover damages for personal injuries, the plaintiff Katieann Blomberg appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Spinner, J.), dated June 3; 2009, as granted that branch of the motion of the defendant USA Center Moriches Gas and Convenient, Inc., which was for summary judgment dismissing the complaint insofar as asserted by her against that defendant.

Ordered that the order is reversed insofar as appealed from, on the law, with costs payable by the respondent, and that branch of the motion of the defendant USA Center Moriches Gas and Convenient, Inc., which was for summary judgment dismissing the complaint insofar as asserted by the appellant against it is denied.

On its motion for summary judgment, the defendant USA Center Moriches Gas and Convenient, Inc. (hereinafter USA Gas), came forward with evidence sufficient to establish its prima facie entitlement to judgment as a matter of law by establishing that it did not sell alcohol to the defendant Heather Carroll on the night of the incident in question. In opposition, the appellant raised a triable issue of fact as to whether Carroll had purchased alcohol from USA Gas.

Accordingly, the Supreme Court should have denied that branch of USA Gas’s motion which was for summary judgment dismissing the complaint insofar as asserted by the appellant against it. Dillon, J.P., Florio, Balkin and Roman, JJ., concur.