Opinion
2011-10-27
William COFFEY, Plaintiff–Appellant,v.Gloryvette L. ESPARRA, Defendant,2427 Restaurant Corp., doing business as Eugene, Defendant–Respondent.
Dell, Little, Trovato & Vecere LLP, Bohemia (Joseph G. Dell of counsel), for appellant. Rosenbaum & Taylor, P.C., White Plains (Dara L. Rosenbaum of counsel), for respondent.
Dell, Little, Trovato & Vecere LLP, Bohemia (Joseph G. Dell of counsel), for appellant.
Rosenbaum & Taylor, P.C., White Plains (Dara L. Rosenbaum of counsel), for respondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered July 6, 2010, which, in this action to recover for personal injuries sustained by plaintiff when he was allegedly struck by defendant driver's motor vehicle sometime after the driver left defendant restaurant, to the extent appealed from as limited by the briefs, granted defendant restaurant's motion for summary judgment dismissing as against it plaintiff's cause of action under the Dram Shop Act (General Obligations Law § 11–101), unanimously affirmed, without costs.
Plaintiff sufficiently stated a cause of action under the Dram Shop Act by referring in his complaint to General Obligations Law § 11–101 and alleging that the restaurant served alcohol to the visibly intoxicated driver ( see Bongiorno v. D.I.G.I., Inc., 138 A.D.2d 120, 123, 529 N.Y.S.2d 804 [1988]; Morrissey v. Sheedy, 26 A.D.2d 683, 272 N.Y.S.2d 430 [1966] ). Nevertheless, Supreme Court properly granted the restaurant's motion. The restaurant satisfied its initial burden of negating the possibility that it served alcohol to a visibly intoxicated person by submitting the driver's testimony that she had nothing to drink in the six hours before she went to the restaurant and had only one drink at the restaurant ( see generally Cohen v. Bread & Butter Entertainment LLC, 73 A.D.3d 600, 905 N.Y.S.2d 4 [2010] ). The driver's testimony is sufficient to meet the restaurant's burden, since she did not have exclusive knowledge of her condition while at the restaurant. Indeed, there were other witnesses at the restaurant that could have testified as to the driver's condition. Thus, it cannot be said that plaintiff was unable to refute by evidentiary proof the driver's testimony. ( See Terbush v. Buchman, 147 A.D.2d 826, 828, 537 N.Y.S.2d 916 [1989]; cf. Koen v. Carl Co., 70 A.D.2d 695, 416 N.Y.S.2d 396 [1979].)
The medical expert affirmation submitted by plaintiff failed to raise an issue of fact. The expert's conclusions were based in large part on inadmissible evidence—namely, a blood alcohol calculation test result that was offered without proper foundation ( see Costa v. 1648 Second Ave. Rest., 221 A.D.2d 299, 300, 634 N.Y.S.2d 108 [1995] ). Moreover, plaintiff did not give an acceptable excuse for failing to tender evidence in admissible form ( id.).