Week of May 14-20

In Trigoso v. Correa, 2017 NY Slip Op 03983 (2d Dept 2017), decided yesterday ( http://www.nycourts.gov/reporter/3dseries/2017/2017_03983.htm ), New York’s Appellate Division, Second Department affirmed the denial of summary judgment to dismiss a Dram Shop claim. 

One mistake by the movant was conceding the admissibility of a police report by attaching it to a reply affirmation, which waived any objection to its admissibility (“The plaintiff also relies on a police report indicating that, after the accident, the driver was ‘observed to be intoxicated and placed under arrest.’ Although Danu now argues that the police report is inadmissible, it submitted the report with its reply papers on the original motion. Thus, Danu waived any objection to its admissibility, and on appeal the plaintiff may rely upon the report in opposition to Danu's summary judgment motion”). So that rule can be used as a sword against another party claiming a police report is inadmissible, but they attached it to their motion or reply.

The decision also highlights the difficulty of obtaining statements from all bartenders in many of these cases, and makes it easier for plaintiffs to argue that questions of fact exist unless all bartenders submit sworn statements, which is sometimes difficult or impossible, but must be attempted (“plaintiff raised a triable issue of fact as to whether Danu's bartenders, who were not presented for deposition, served alcohol to the driver while he was visibly intoxicated”).

That issue, combined with a high blood alcohol level, raised an issue of fact, although the court was careful to note that a high BAC, by itself, should not be enough to raise a question of fact in plaintiff’s favor (“Proof of a high blood alcohol content does not, in and of itself, ‘provide a sound basis for drawing inferences about a person's appearance or demeanor’ … Nonetheless, ‘[p]roof of visible intoxication can be established by circumstantial evidence, including expert and eyewitness testimony’").

The defendant may not have been able to prevail anyway since “plaintiff submitted a transcript of the driver's plea of guilty to aggravated driving while intoxicated and related crimes, which established that the driver recalled drinking ‘a few’ mixed drinks prior to the accident and that his blood alcohol content was over .18%.” Defendant may have failed to argue that the plea was inadmissible, although that can be a difficult argument to make.