Reynolds v. Studley

217 A.D.2d 1000, 631 N.Y.S.2d 269, 1995 N.Y. App. Div. LEXIS 8433

Opinion

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiffs and defendant James A. Studley appeal from an order of Supreme Court granting the summary judgment motion of defendant Concord Bowling Lanes of Springfield, Inc. (Concord) dismissing the amended complaint and Studley’s cross claim against Concord. The court erred in dismissing plaintiffs’ Dram Shop cause of action (see, General Obligations Law § 11-101; Alcoholic Beverage Control Law § 65 [2]) and Studley’s cross claim against Concord. In opposition to Concord’s motion, plaintiffs and Studley "raised * * * triable issue[s] of fact on that cause of action” by proffering "competent * * * testimony tending to establish, circumstantially, that [Studley was present on Concord’s premises and] was [visibly] intoxicated at the time he was sold alcoholic beverages” (Nesbitt v Jackson, 178 AD2d 931, 932; cf., Jones v Kelly, 201 AD2d 536). Therefore, we modify the order by denying in part Concord’s motion and by reinstating plaintiffs’ fourth cause of action alleging a violation of the Dram Shop Act and Studley’s cross claim for indemnification or contribution against Concord. (Appeals from Order of Supreme Court, Erie County, Whelan, J.—Dram Shop Act.) Present—Green, J. P., Lawton, Wesley, Davis and Boehm, JJ.