KOEHANE v. LAKEFRONT PIER RESTAURANT INC (1998)

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

Frances KOEHANE, Individually and as Administratrix of the Estate of Deborah Guise, Deceased, Respondent, v. LAKEFRONT PIER RESTAURANT, INC., d/b/a Breakers Waterfront Restaurant, et al., Defendants,
Anchor Boat Sales, Inc., Appellant. Robert STEFANSKI, Respondent, v. LAKEFRONT PIER RESTAURANT, INC., d/b/a Breakers Waterfront Restaurant, et al., Defendants, Trestle Landing Holding Corp., d/b/a Anchor Boat Sales, Appellant. (Appeal No. 1.)

Decided: July 08, 1998

Before PINE, J.P., HAYES, WISNER, BALIO and FALLON, JJ.

O'Shea Reynolds by C. DeForest Cummings, Jr., Buffalo, for Defendants-Appellants Trestle Landing Holding Corp. d/b/a Anchor. Law Offices of Roy J. Carlisi, Jr. by Michael Iacono, for Plaintiff-Respondent Frances Koehane. Angelo A. Buffomante, Elma, for Plaintiff-Respondent Stefanski. Burke & Burke by Patrick Burk, Rochester, for Defendant Lakefront Pier Restaurant, Inc. d/b/a Breakers Waterfront. Bouvier, O'Connor, Buffalo, for Defendant Guise. Robert J. Tronolone, Buffalo, for Defendants.

Supreme Court properly denied the motions of defendants Trestle Landing Holding Corp., d/b/a Anchor Boat Sales (Trestle), and Lakefront Pier Restaurant, Inc., d/b/a Breakers Waterfront Restaurant (LPR, Inc.), for summary judgment in these actions resulting from a boating accident in which it is alleged, inter alia, that the drivers of the two boats were impaired due to the consumption of alcohol. Trestle did not meet its initial burden on its motion because it failed to establish that it was no longer the “owner” of the boat driven by Hammond at the time of the accident (see, Panzella v. Major Chevrolet, 209 A.D.2d 594, 619 N.Y.S.2d 129). LPR, Inc., also failed to establish its entitlement to judgment as a matter of law because it failed to negate the possibility that alcohol was served in violation of the Dram Shop Act (General Obligations Law § 11-101; see also, Alcoholic Beverage Control Law § 65) to defendants Richard L. Hammond and Robert Guise before the accident (see, Sahr v. Schmidli, 236 A.D.2d 785, 653 N.Y.S.2d 468).

Order unanimously affirmed without costs.

MEMORANDUM:

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