Stewart v. Taylor

Appellate Division of the Supreme Court of New York

Stewart v. Taylor

167 A.D.2d 846, 562 N.Y.S.2d 253, 1990 N.Y. App. Div. LEXIS 14389

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

DecidedNovember 16, 1990

StatusPublished

Cited by6 cases

This text of 167 A.D.2d 846 (Stewart v. Taylor) 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

Stewart v. Taylor, 167 A.D.2d 846, 562 N.Y.S.2d 253, 1990 N.Y. App. Div. LEXIS 14389 (N.Y. Ct. App. 1990).

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Opinion

Order and judgment unanimously affirmed without costs. Memorandum: Supreme Court correctly determined that a commercial vendor cannot be held liable under section 11-100 or 11-101 of the General Obligations Law absent proof that it sold alcoholic beverages directly to the alleged tort-feasor (General Obligations Law § 11-101; see also, Smith v Guli, 117 AD2d 1017; Lee v Holloway, 146 Misc 2d 455) or that it unlawfully furnished such beverages to an under-age person alleged to be the tort-feasor (General Obligations Law § 11-100).

The court did not abuse its discretion by entertaining defendant’s application to renew a prior motion for summary judgment. The prior motion was denied because the court concluded that a factual issue existed whether the intoxicated [847]*847driver or some other person actually purchased the beer from defendant vendor. Depositions conducted subsequent to that motion further supported the vendor’s claim that it sold beer to someone other than the under-age driver and that the driver never entered the store. Consideration of those additional facts on a motion to renew was appropriate (see, Sciascia v Nevins, 130 AD2d 649). (Appeal from order and judgment of Supreme Court, Monroe County, Wesley, J.—summary judgment.) Present—Dillon, P. J., Callahan, Boomer, Green and Balio, JJ.

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Order and judgment unanimously affirmed without costs. Memorandum: Supreme Court correctly determined that a commercial vendor cannot be held liable under section 11-100 or 11-101 of the General Obligations Law absent proof that it sold alcoholic beverages directly to the alleged tort-feasor (General Obligations Law § 11-101; see also, Smith v Guli, 117 AD2d 1017; Lee v Holloway, 146 Misc 2d 455) or that it unlawfully furnished such beverages to an under-age person alleged to be the tort-feasor (General Obligations Law § 11-100).

The court did not abuse its discretion by entertaining defendant’s application to renew a prior motion for summary judgment. The prior motion was denied because the court concluded that a factual issue existed whether the intoxicated [847]*847driver or some other person actually purchased the beer from defendant vendor. Depositions conducted subsequent to that motion further supported the vendor’s claim that it sold beer to someone other than the under-age driver and that the driver never entered the store. Consideration of those additional facts on a motion to renew was appropriate (see, Sciascia v Nevins, 130 AD2d 649). (Appeal from order and judgment of Supreme Court, Monroe County, Wesley, J.—summary judgment.) Present—Dillon, P. J., Callahan, Boomer, Green and Balio, JJ.

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Bluebook (online)

167 A.D.2d 846, 562 N.Y.S.2d 253, 1990 N.Y. App. Div. LEXIS 14389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-taylor-nyappdiv-1990.

Opinion

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