Diamond Gonzalez v City of Buffalo, et al., and Poize, Inc.
Attorneys and Parties
Brief Summary
Dram shop/liquor liability for bars and taverns; summary judgment standards regarding service to a visibly intoxicated patron.
Granted Poize, Inc.'s motion for summary judgment and dismissed the complaint against it.
The grant of summary judgment in favor of Poize, Inc. on the first cause of action under General Obligations Law § 11-101 and Alcoholic Beverage Control Law § 65(2) was reversed; that claim was reinstated.
Poize, Inc. failed to meet its initial burden of showing the driver was not visibly intoxicated when served as required to defeat a claim under General Obligations Law § 11-101 [anyone who, by unlawfully selling to or assisting in procuring liquor for an intoxicated person, causing or contributing to such intoxication, is liable to third parties] predicated on Alcoholic Beverage Control Law § 65(2) [prohibits selling/delivering/giving alcoholic beverages to any visibly intoxicated person]. Its submissions relied on general policies and training and lacked specific, firsthand testimony from witnesses present who observed the driver's condition.
Background
Plaintiff was injured after being struck by a vehicle operated by an intoxicated driver. Earlier that evening, plaintiff, the driver, and others were celebrating and consuming alcohol. The group was denied entry to one establishment because some members were visibly intoxicated, then went to Poize, Inc.'s bar where they were served more alcohol. Plaintiff alleges Poize unlawfully served the driver while she was visibly intoxicated in violation of Alcoholic Beverage Control Law § 65(2), creating liability under General Obligations Law § 11-101.
Lower Court Decision
Supreme Court, Erie County, granted Poize, Inc.'s motion for summary judgment and dismissed the complaint against it, including the first cause of action asserting statutory dram shop liability.
Appellate Division Reversal
The Appellate Division unanimously reversed without costs insofar as appealed from, denied the motion in part, and reinstated the first cause of action against Poize, Inc. The court held Poize did not establish, as a matter of law, that the driver was not visibly intoxicated when served. The record included evidence the group had been denied entry elsewhere for visible intoxication and that Poize served them, but Poize offered only general testimony about policies/training and no specific recollection from staff present regarding the driver's condition. A dissent by Justices DelConte and Keane would have affirmed, concluding Poize met its initial burden through uncontradicted employee testimony describing training, monitoring, and lack of observed visible intoxication, and that plaintiff failed to raise a triable issue.
Legal Significance
Clarifies the initial burden on a bar seeking summary judgment on dram shop claims under General Obligations Law § 11-101 predicated on Alcoholic Beverage Control Law § 65(2). General assertions about training and policies or lack of recollection are insufficient; defendants should provide concrete, firsthand evidence addressing the patron’s visible intoxication at the time of service.
To win summary judgment on a dram shop claim tied to service to a visibly intoxicated patron, a bar must submit specific, firsthand proof that the patron was not visibly intoxicated when served; policy evidence and non-specific testimony will not shift the burden to the plaintiff.