BAUSEMAN v. PAMDH ENTERPRISES INC (2023)

Order, Supreme Court, Bronx County (Leticia M. Ramirez, J.), entered on or about May 16, 2022, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing plaintiffs’ claim based on violation of the Dram Shop Act, unanimously reversed, on the law, without costs, and plaintiffs’ claim under General Obligations Law § 11–101 reinstated.

Defendant failed to establish its prima facie entitlement to summary judgment dismissing plaintiffs’ claim based on violation of the Dram Shop Act (General Obligations Law § 11–101;  Alcoholic Beverage Control Law § 65[2]).  “[A] defendant when moving for summary judgment cannot merely point to gaps in the plaintiffs’ evidence, but must affirmatively demonstrate entitlement to summary judgment” (Ballard v. Sin City Entertainment Corp., 188 A.D.3d 554, 555, 135 N.Y.S.3d 105 [1st Dept. 2020];  see Cohen v. Bread & Butter Entertainment LLC, 73 A.D.3d 600, 905 N.Y.S.2d 4 [1st Dept. 2010]).

Although defendant's manager testified about employee training and practices generally, his testimony regarding the incident at issue—including, inter alia, that he did not know whether any patrons were intoxicated on the date of the alleged incident, that he was not aware of anyone being asked to leave the establishment due to intoxication during the month of the incident, and that defendant did not keep records of intoxicated individuals—failed to carry defendant's initial burden.  Defendant's further “reli[ance] on plaintiffs’ inability to prove that the assailants were served alcohol or were intoxicated” was similarly insufficient to carry its prima facie burden (Ballard, 188 A.D.3d at 555, 135 N.Y.S.3d 105).

We have considered the parties’ remaining arguments and find them unavailing.