Ellen Manning Atwell and Rondiene Novitz Win Summary Judgement in Dram Shop Case

Plaintiff was injured as a result of a motor vehicle collision with defendant. The defendant was arrested, charged and convicted of DUI with respect to the accident. The defendant testified at his deposition that he consumed 5-6 alcoholic drinks at our client’s establishment. Based upon the defendant’s testimony,Plaintiff then moved to amend his complaint to include our client, alleging that it violated Section 11-101 of the General Obligations Law and Section 65 of the Alcoholic Beverage Control Law of the State of New York by serving a visibly intoxicated person alcoholic beverage and this resulted in the motor vehicle accident wherein plaintiff was injured.

We moved to dismiss plaintiff’s claim against our client on the basis that there was no evidence that the codefendant was served at the establishment while he was visibly intoxicated. The only evidence regarding codefendant’s appearance was his own testimony that he was not slurring his words and had no difficulty walking. Plaintiff submitted an unsworn police report to show the blood alcohol content of the defendant two hours after the incident. He also relied on a scientific treatise to support his argument that the defendant must have been intoxicated while at the establishment. However, plaintiff failed to submit any evidence as to the defendant’s appearance at the time he was served his last alcoholic beverage. Accordingly summary judgment was granted in favor of our client.

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