DARWISH v. Hanidy Tavern, Inc., etc., Defendant-Appellant. (2001)

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered on or about December 22, 2000, which denied defendant tavern's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff testified at deposition that just prior to his encounter with the individual who assaulted him, he observed that individual leave defendant tavern in an obviously intoxicated condition.   Given such testimony, it was incumbent upon defendant, as the proponent of a motion for summary judgment seeking dismissal of plaintiff's Dram Shop claims against it, to negate the possibility that it served alcohol to a visibly intoxicated person.   This defendant failed to do.   Indeed, as the motion court noted, defendant offered no evidence at all, urging instead the failure of plaintiff's deposition testimony and bill of particulars to demonstrate a prima facie case.   Accordingly, the burden never shifted to plaintiff to adduce evidence that defendant served alcohol to the assailant despite visible signs of intoxication (see, Costa v. 1648 Second Ave. Rest., 221 A.D.2d 299, 300-301, 634 N.Y.S.2d 108;  Duran v. Poggio, 244 A.D.2d 162, 663 N.Y.S.2d 572).