Hale v. DeMino

Appellate Division of the Supreme Court of New York

Hale v. DeMino

188 A.D.2d 1053, 592 N.Y.S.2d 1012, 1992 N.Y. App. Div. LEXIS 14923

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 30, 1992

StatusPublished

This text of 188 A.D.2d 1053 (Hale v. DeMino) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hale v. DeMino, 188 A.D.2d 1053, 592 N.Y.S.2d 1012, 1992 N.Y. App. Div. LEXIS 14923 (N.Y. Ct. App. 1992).

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Opinion

Order unanimously affirmed with costs. Memorandum: Plaintiff raised questions of fact by submitting evidentiary proof in admissible form in opposition to defendant Bowl-A-Roll’s motion for summary judgment and thus the denial of summary judgment was proper (see, Zuckerman v City of New York, 49 NY2d 557, 562). The contradictions in defendant DeMino’s criminal trial and deposition testimony raised an issue of fact whether Bowl-A-Roll directly sold an alcoholic beverage to him, and Dr. Smith’s affidavit and Deputy Thorpe’s criminal trial testimony raised an issue of fact whether DeMino was visibly intoxicated at Bowl-A-Roll. With respect to Bowl-A-Roll’s argument regarding proximate cause, Deputy Hanretty’s affidavit constituted evidence that a sober person could not have avoided striking decedent, who was on foot in a

[1054]*1054driving lane of Route 590 at 1:00 a.m., but there was no evidence that a sober person could not have slowed down enough to avoid killing him. (Appeal from Order of Supreme Court, Monroe County, Wisner, J. — Summary Judgment.) Present — Boomer, J. P., Pine, Lawton, Boehm and Davis, JJ.

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Order unanimously affirmed with costs. Memorandum: Plaintiff raised questions of fact by submitting evidentiary proof in admissible form in opposition to defendant Bowl-A-Roll’s motion for summary judgment and thus the denial of summary judgment was proper (see, Zuckerman v City of New York, 49 NY2d 557, 562). The contradictions in defendant DeMino’s criminal trial and deposition testimony raised an issue of fact whether Bowl-A-Roll directly sold an alcoholic beverage to him, and Dr. Smith’s affidavit and Deputy Thorpe’s criminal trial testimony raised an issue of fact whether DeMino was visibly intoxicated at Bowl-A-Roll. With respect to Bowl-A-Roll’s argument regarding proximate cause, Deputy Hanretty’s affidavit constituted evidence that a sober person could not have avoided striking decedent, who was on foot in a

[1054]*1054driving lane of Route 590 at 1:00 a.m., but there was no evidence that a sober person could not have slowed down enough to avoid killing him. (Appeal from Order of Supreme Court, Monroe County, Wisner, J. — Summary Judgment.) Present — Boomer, J. P., Pine, Lawton, Boehm and Davis, JJ.

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Bluebook (online)

188 A.D.2d 1053, 592 N.Y.S.2d 1012, 1992 N.Y. App. Div. LEXIS 14923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hale-v-demino-nyappdiv-1992.

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