Lindsay v. Potter

163 A.D.2d 870

Opinion

Order and judgment unanimously reversed on the law with costs and motion denied. Memorandum: Summary judgment was improperly granted to defendant Cane, doing business as Lexington Avenue Inn. To prevail on a motion for summary judgment, defendant must establish his defense "sufficiently to warrant the court as a matter of law in directing judgment” in his favor (CPLR 3212 [b]; Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425). Upon review of the record, we find that defendant Cane failed to establish, as a matter of law, that a prohibited sale of alcoholic beverages was not made to defendant Potter in the Lexington Avenue Inn on December 15, 1985 (see, Alcoholic Beverage Control Law §65 [former (2)]). (Appeal from order and judgment of Supreme Court, Monroe County, Patlow, J.—summary judgment.) Present—Dillon, P. J., Doerr, Boomer, Lawton and Davis, JJ.