Opinion
December 19, 1986
Appeal from the Supreme Court, Monroe County, Boehm, J.
Present — Callahan, J.P., Boomer, Green, Balio and Lawton, JJ.
Judgment, insofar as it awards damages to plaintiff against defendant Mollie Prince, doing business as Michael's Tavern, unanimously reversed, on the law, with costs, and a new trial granted on the issue of damages only, unless said defendant shall, within 20 days after service of a copy of the order herein with notice of entry thereof, stipulate to increase the verdict to the principal sum of $100,000, in which event the judgment shall be modified accordingly, and, as modified, affirmed, without costs. Memorandum: Upon review of the record, we find that the jury's award of damages was inadequate to the extent indicated. We agree with the trial court, however, that plaintiff failed to prove a prima facie case against defendants Schlegel Corp. and Schlegel Social and Athletic Association since the Association was not engaged in the commercial sale of alcohol (see, Conigliaro v. Franco, 122 A.D.2d 15; Gabrielle v. Craft, 75 A.D.2d 939, 940; Edgar v. Kajet, 84 Misc.2d 100, affd 55 A.D.2d 597; Kohler v. Wray, 114 Misc.2d 856, 857; see also, Valicenti v. Valenze, 68 N.Y.2d 826).