Allan v. Keystone Nineties, Inc.
Court | New York Supreme Court Appellate Division |
Citation | 427 N.Y.S.2d 107,74 A.D.2d 992 |
Parties | Richard S. ALLAN and James R. Mittelstaedt, Appellants, v. KEYSTONE NINETIES, INC., Respondent. |
Decision Date | 28 March 1980 |
Paul William Beltz, P.C., Buffalo by Russell T. Quinlan, Buffalo, for appellants.
O'Shea, Adamson, Reynolds & Napier, Buffalo by William Martin, Buffalo, for respondent.
Before CARDAMONE, J. P., and SIMONS, SCHNEPP, DOERR and MOULE, JJ.
Appellants were employed as New York State Troopers when the vehicle in which they were sitting was struck from behind by a vehicle operated by John Maroney. At the time of the accident Maroney was on his way home from the respondent's Keystone Nineties Tavern where he had spent most of the evening. Appellants brought this action against respondent under the so-called Dram Shop Act, General Obligations Law, § 11-101. At the close of appellants' case the trial court granted respondent's motion to dismiss the complaints on the ground that appellants had failed to establish a prima facie case. Appellants contend that the evidence submitted was sufficient to withstand a motion to dismiss and that the trial court erred in refusing to consider certain evidence concerning Maroney's state of inebriation. We agree.
General Obligations Law, § 11-101 creates, on behalf of persons injured by any intoxicated person, a cause of action against all who "by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication". An illegal sale is a sale of alcoholic beverages to a minor, to a habitual drunk or to an "intoxicated person or to any person, actually or apparently, under the influence of liquor" (Alcoholic Beverage Control Law § 65). Thus, in order for the appellants to make out a prima facie case it was incumbent that they set forth proof from which it could be concluded that respondent caused or contributed to Maroney's intoxication by selling intoxicating drinks to him at a time when he was intoxicated, under the influence of alcohol or apparently under the influence of alcohol. We believe that a jury considering all of the evidence presented, including that which was improperly stricken could so find.
The trial court refused to admit certain statements of witnesses Maroney and Kelley to the effect that Maroney was intoxicated. This was error. A lay witness is competent to express his opinion as to whether he or any other...
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...intoxication based on conduct including exceeding the speed limit and failing to heed traffic signals. Allan v. Keystone Nineties, Inc., 74 A.D.2d 992, 427 N.Y.S.2d 107 (4th Dept. 1980). A lay person may express an opinion concerning another’s intoxication in a “Dram Shop” action (holding b......
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...intoxication based on conduct including exceeding the speed limit and failing to heed traffic signals. Allan v. Keystone Nineties, Inc. , 74 A.D.2d 992, 427 N.Y.S.2d 107 (4th Dept. 1980). A lay person may express an opinion concerning another’s intoxication in a “Dram Shop” action (holding ......
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Witness examination
...intoxication based on conduct including exceeding the speed limit and failing to heed traic signals. Allan v. Keystone Nineties, Inc. , 74 A.D.2d 992, 427 N.Y.S.2d 107 (4th Dept. 1980). A lay person may express an opinion concerning another’s intoxication in a “Dram Shop” action (holding ba......
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Witness examination
...intoxication based on conduct including exceeding the speed limit and failing to heed traic signals. Allan v. Keystone Nineties, Inc. , 74 A.D.2d 992, 427 N.Y.S.2d 107 (4th Dept. 1980). A lay person may express an opinion concerning another’s intoxication in a “Dram Shop” action (holding ba......