DURAN v. D.R.M. Restaurant Corp., etc., Defendant-Appellant. (1997)

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered on or about September 23, 1996, which, in an action under the Dram Shop Act, denied defendant-appellant restaurant's motion for summary judgment, unanimously affirmed, without costs.

Defendant restaurant's moving papers failed to satisfy its initial burden of negating that Poggio was visibly intoxicated, and thus the restaurant's motion for summary judgment was properly denied (see, Costa v. 1648 Second Ave. Rest., 221 A.D.2d 299, 634 N.Y.S.2d 108;  Cadieux v. D.B. Interiors, 214 A.D.2d 323, 624 N.Y.S.2d 582).   While the restaurant's bartender testified that Poggio did not appear visibly intoxicated when he first entered the bar, the restaurant did not submit any evidence that Poggio was not visibly intoxicated when the bartender served him another drink approximately 45 minutes later, and the bartender conceded that others at the bar, including “the bar itself”, could have bought Poggio drinks that evening.

MEMORANDUM DECISION.