This is an action for damages for personal injuries allegedly sustained by the plaintiffs, arising out of a motor vehicle accident which occurred on August 11, 2005 on Route 25 A, Town of Smithtown, County of Suffolk, State of New York, when their vehicle and the other vehicle came into contact when the operator allegedly crossed over a double yellow line and struck the plaintiffs vehicle. Plaintiff was a passenger in the vehicle operated by the other plaintiff, but to date, has not claimed any personal injury arising out of the accident in her bill of particulars, but appears instead to be asserting a derivative claim. A Lawyer said that, the main action was commenced against defendant, a bar located at 15 East Main Street, Smithtown, New York, wherein it is claimed that employees of the bar served alcoholic beverages to the operator of the other vehicle, the third-party defendant in violation of Section 65 of the Alcoholic Beverage Control Law and Section 11-101 of the General Obligation Law of the State of New York. Defendant thereafter commenced a third-party action against the operator of the other vehicle seeking indemnification and contribution.
A report said that, defendant now moves pursuant to CPLR 3212 for an order granting summary judgment dismissing the complaint, or in the alternative, pursuant to CPLR 3211 for an order dismissing the complaint for failure to state a cause of action. Defendant claims that it did not violate the Dram Shop Act or Section 65 of the Alcoholic Beverage Control Law and cannot be held liable to the plaintiffs for their injuries.
The issue in this case is whether there is no cause of action in the complaint despite the operator being held liable for DWI.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented. The movant has the initial burden of proving entitlement to summary judgment. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form and must “show facts sufficient to require a trial of any issue of fact”. The opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established. Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct a judgment in favor of the movant as a matter of law.
In support of this motion the defendant has submitted, inter alia, an attorney’s affirmation; a copy of the amended summons and complaint and third-party summons and complaint; defendant’s answer; a copy of the verified and amended verified bill of particulars; copies of the transcripts of the examination before trial of plaintiffs.
In opposing this motion the plaintiffs have submitted an attorney’s affirmation, an uncertified copy of misdemeanor information dated August 12, 2005. Initially, the Court notes that the uncertified Misdemeanor Information is not in admissible form.
The third-party defendant testified at his examination before trial that he was involved in a motor vehicle on August 11, 2005 around 8:30 p.m. He was about thirty years old. He had worked in construction from 7:00 a.m. until about 4:30 p.m. or 5:00 p.m. and after work, driving a truck owned by the company, went directly to the bar, arriving between 5:00 p.m. and 6:00 p.m. for a birthday party, to play pool and to just hang out. He did not drink any alcohol prior to arriving there and during the two hours he was there, he drank about four or five beers, Bud Lights. He bought some and one of his friends bought some. He stated he drank Bud Light and couldn’t be sure if he drank one shot of vodka. He stated he believed he did not buy any drinks from the waitresses or bartender who bartends and waits, but could not be sure. He had no difficulty walking or negotiating the steps at the bar when he left after 8:00 p.m. No one told him that he appeared to be intoxicated, or had too much to drink or that his eyes were blood shot or red, or that his speech was slurred. He drove the truck about a mile before the accident happened. He had just used his cell phone, and when he went to put it back down in the middle of the seat, it fell to the floor. He bent down to pick the phone up when the accident happened on the left curve in the road. He was arrested and pleads guilty to a DWI acknowledging his blood alcohol level was .18. He never had a prior conviction for anything and was never told he had too much to drink or was cut off on prior occasions. He did state he called a cab to take him home on some occasions.
The plaintiffs did not testify as to whether the third-party defendant appeared intoxicated at the accident scene. General Obligations Law § 11-101 (1) states in pertinent part, that “any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages.”
In order for a court to determine whether there has been an illegal sale of liquor within the meaning of the Dram Shop Act, NY GOL § 11-101, that act must be read and considered in conjunction with NY Ale. Bev. Cont. Law §65. NY Alco. Bev. Cont. Law § 65, Prohibited sales: provides in pertinent part that “no person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to 1, any person, actually or apparently, under the age of twenty-one years; 2. Any visibly intoxicated person; 3. Any habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages”
The key elements for recovery under the Dram Shop Act are (1) unlawful sale, (2) of liquor, (3) to an intoxicated person which (4) caused injury.
The adduced testimony establishes that the bartender did not see any signs of intoxication of the third-party defendant while he was at bar or when she left at 7:00 p.m. As she was leaving, she observed him playing pool and he appeared fine, sober. She had not seen him appear intoxicated on other occasions. It has been demonstrated prima facie that the third-party defendant was not visibly intoxicated at bar and that the bartender at bar did not unlawfully sell him alcoholic beverages while he was visibly intoxicated. Based upon the foregoing, it has been demonstrated prima facie by the moving defendant, that, as a matter of law, the plaintiff was not visibly intoxicated to satisfy the element that there was a sale of alcohol to an intoxicated person under either.
In opposing this motion, the plaintiff has submitted the affidavit of the Laboratory Director and Chief Toxicologist at the Suffolk County Medical Examiner’s Office. He states that the third-party defendant’s alcohol breathalyzer test was .18% at 11:17 p.m., which reading, he opines, is more than twice the current motor vehicle laws defined impairment/DWI of 0.08%. He sets forth his basis for his opinion.
The seller must have notice of a consumer’s near intoxicated condition by means of objective outward appearance for the sale to be unlawful, and hence, within the Dram Shop Act. Here, the expert’s opinion that third-party defendant must have been visibly intoxicated prior to the accident is based on a BAC taken two and one half hours after the accident and does not address the blood level at the time of the accident, except with speculation and assumption, and does not address the accuracy of the BAC machine. The expert sets forth the visible clinical signs of intoxication of a BAC level at .18%, but does not indicate that the third-party defendant demonstrated any of those signs at the bar.
In the instant action there has been no admissible evidence submitted to demonstrate that defendant bar knew or should have known that the third-party defendant Mr. was intoxicated with a blood alcohol level of 18. The plaintiffs’ expert assumed the breathalyzer test equipment was correctly calibrated and chemicals were correctly mixed. However, there had been no trial relating to the third-party defendant’s underlying arrest and no expert witness testimony to establish the accuracy of the reading. Nor has any admissible evidence been submitted concerning the accuracy of the breathalyzer test administered to the third-party defendant, such as the affidavit of the operator of the machine.
Here the gravamen of the plaintiffs’ complaint is the right to recover damages under the Dram Shop or Civil Damage Act. Violation of their provisions is negligence per se and the contributory negligence of the injured person is no defense. The burden of proof rests with the plaintiff and he must establish that there was an unlawful sale of liquor to an intoxicated person which caused him injury. Pursuant to the Alcoholic Beverage Control Law §65, recovery may be had where a sale is made to an intoxicated person, or to one “actually or apparently, under the influence of liquor” and pursuant to the Dram Shop Act, an unlawful sale of liquor to an intoxicated person. Here it has been demonstrated prima facie that the third-party defendant did not demonstrate signs of visual intoxication while present at the bar, the plaintiffs have failed to raise a factual issue to preclude summary judgment, and thus, it is determined as a matter of law that the defendant bar did not unlawfully sell alcohol to an intoxicated person in violation of NY Alco. Bev. Cont. Law §5 or GOL §11-101.
Accordingly, the court held the motion by defendant, pursuant to CPLR 3212 for summary judgment on the issue of liability, or in the alternative, pursuant to CPLR 3211 dismissing the complaint for failure to state a cause of action is treated as a motion pursuant to CPLR 3212 and is granted and the complaint and the third-party complaint are dismissed with prejudice.
A breathalyzer reading is admissible at trial only if the People present evidence from which the trier of fact could reasonably conclude that the machine was working properly when the test was given and that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportions.
If the breathalyzer test has not been properly conducted, you will need the help of a New York Drunk Driving Attorney and New York DWI Defense Attorney at Stephen Bilkis and Associates. Call us.