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

Anthony F. ENDIEVERI, as Administrator of the Estate of Steven A. Endieveri, Deceased, Plaintiff-Appellant, v. Maurice Graham LETT, Defendant-Respondent.

Decided: November 15, 2002

Present PINE, J.P., WISNER, HURLBUTT, KEHOE, and BURNS, JJ. Cote & Limpert, Syracuse (Hannah Jones of Counsel), for Plaintiff-Appellant. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Mary Kendrick-Gaffney of Counsel), for Defendant-Respondent.

Plaintiff's decedent was killed when his vehicle was struck by another vehicle.   The driver of the other vehicle was thereafter convicted of manslaughter in the second degree and driving while intoxicated, and plaintiff commenced this action alleging that defendant had served an excessive amount of alcohol to that driver.   Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint where, as here, there is no allegation that defendant sold alcohol to the driver of the other vehicle.   The Court of Appeals has made clear that there is “no basis for departing from the consistent interpretation of lower courts that the Dram Shop Act requires a commercial sale of alcohol” (D'Amico v. Christie, 71 N.Y.2d 76, 84, 524 N.Y.S.2d 1, 518 N.E.2d 896).  “[I]f there is to be a change in what the Legislature has clearly written it should come from the Legislature” (id ).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.