Sheehan v. Gilray

• Decision Date: 07 July 2017
• Citation: 152 A.D.3d 1179,58 N.Y.S.3d 821
• Parties: William H. SHEEHAN and Marcy A. Sheehan, Plaintiffs–Respondents, v. Thomas A. GILRAY, Jr., et al., Defendants, and Central Terminal Restoration Corporation, Defendant–Appellant. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

152 A.D.3d 1179

58 N.Y.S.3d 821

William H. SHEEHAN and Marcy A. Sheehan, Plaintiffs–Respondents,

v. Thomas A. GILRAY, Jr., et al., Defendants,andCentral Terminal Restoration Corporation, Defendant–Appellant. (Appeal No. 1.).

Supreme Court, Appellate Division, Fourth Department, New York.

July 7, 2017.

Goldberg Segalla LLP, Buffalo, Mauro Lilling Naparty LLP, Woodbury (Seth M. Weinberg of Counsel), for Defendant–Appellant.

Smith, Miner, O'Shea & Smith, LLP, Buffalo (R. Charles Miner of Counsel), for Plaintiffs–Respondents.

PRESENT: SMITH, J.P., CARNI, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.

MEMORANDUM:

William H. Sheehan, a plaintiff in appeal No. 1, and Michael A. Serrano, the plaintiff in appeal No. 2, were passengers in a vehicle operated by Marcy A. Sheehan, the second plaintiff in appeal No. 1. Sometime between 10:30 p.m. and 11:00 p.m., Marcy Sheehan lost control of the vehicle and struck a concrete barrier, and the occupants exited the vehicle and walked to a grassy area off of the roadway. Shortly thereafter, the Sheehan vehicle was struck by a vehicle operated by a nonparty. Following that collision, William Sheehan and Serrano returned to the area where the two vehicles were situated, and the police arrived. Soon after the arrival of the police, a vehicle operated by defendant Thomas A. Gilray, Jr. collided with the Sheehan vehicle, which then struck William Sheehan and Serrano. Thereafter, Gilray failed three field sobriety tests and, at 1:35 a.m. on April 2, 2013, his blood alcohol level was recorded as .127%. Earlier in the evening, Gilray had attended an event at defendant Corpus Christi Church (CCC), where he consumed alcohol, and he thereafter consumed more alcohol at an event hosted by defendant Central Terminal Restoration Corporation (Central Terminal). Gilray left Central Terminal between 10:00 p.m. and 10:30 p.m., stopped at his place of employment, and then was involved in the subject motor vehicle accident at 11:00 p.m. Plaintiffs commenced their respective actions against, inter alia, Central Terminal alleging, among other things, that Central Terminal was responsible for their injuries inasmuch as it sold and/or provided alcohol to Gilray while he was visibly intoxicated, in violation of General Obligations Law § 11–101 and Alcoholic Beverage Control Law § 65.

We conclude that Supreme Court properly denied that part of the motion of Central Terminal for summary judgment with respect to the claims against it for violations of General Obligations Law § 11–101 and Alcoholic Beverage Control Law § 65. Although Central Terminal met its initial burden on those parts of the motion by submitting the deposition testimony of individuals who had interacted with Gilray prior to the accident, none of whom had any recollection that Gilray was visibly intoxicated, plaintiffs raised a triable issue of fact in opposition thereto. It is well established that "visible intoxication may be established by circumstantial evidence, including expert and eyewitness testimony" ( Kish v. Farley, 24 A.D.3d 1198, 1200, 807 N.Y.S.2d 235 ...