Nesbitt v. Jackson
| Decision Date | 26 December 1991 |
| Citation | 578 N.Y.S.2d 799,178 A.D.2d 931 |
| Parties | Leona M. NESBITT and Richard V. Nesbitt, Appellants, v. Monica L. JACKSON, et al., Defendants, Thomas J. O'Brien and Patricia O'Brien, d/b/a Colonial Lodge, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Robert E. Lahm, Syracuse, for appellants.
James S. Baier, Auburn, for respondents.
Before DENMAN, P.J., and DOERR, BOOMER, PINE and BALIO, JJ.
Plaintiffs appeal from an order granting defendants' motion for summary judgment dismissing plaintiffs' negligence and Dram Shop claims. The Dram Shop cause of action should not have been dismissed. In opposition to defendants' motion, plaintiffs raised a triable issue of fact on that cause of action. They adduced competent eyewitness and expert opinion testimony tending to establish, circumstantially, that decedent was intoxicated at the time he was sold alcoholic beverages (cf., Fiegl v. 1695 Ridge Rd. Webster Inn Rest., 162 A.D.2d 1024, 1025, 557 N.Y.S.2d 809; see also, Scheu v. High-Forest Corp., 129 A.D.2d 366, 368, 371, 517 N.Y.S.2d 798). Accordingly, the order is modified to deny defendants' motion in part and to reinstate plaintiffs' fourth cause of action.
Order unanimously modified on the law and as modified affirmed without costs.
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...contention of Friday's that plaintiff is required to establish her Dram Shop cause of action by direct evidence. In Nesbitt v. Jackson, 178 A.D.2d 931, 578 N.Y.S.2d 799, we reinstated a Dram Shop cause of action where the plaintiffs "adduced competent eyewitness and expert opinion testimony......
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...was visibly intoxicated when served, according to the testimony, at most two beers at Carm's Place (see, id.; cf., Nesbitt v. Jackson, 178 A.D.2d 931, 578 N.Y.S.2d 799; Fiegl v. 1695 Ridge Rd. Webster Inn Rest., 162 A.D.2d 1024, 557 N.Y.S.2d 809; Martinez v. Camardella, supra; Wasserman v. ......
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...Roman out the door after they instigated an altercation (see, eg, Heavlin v. Gush, 197 A.D.2d 773, 602 N.Y.S.2d 721; Nesbitt v. Jackson, 178 A.D.2d 931, 578 N.Y.S.2d 799; Wasserman v. Godoy, 136 A.D.2d 631, 523 N.Y.S.2d 597). Furthermore, the Supreme Court properly denied summary judgment t......
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