Thomas Kish v Victor N. Farley

Kish v Farley 2005 NY Slip Op 09829 [24 AD3d 1198] December 22, 2005 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

Thomas Kish et al., Individually and as Parents and Natural Guardians of Christina M. Kish, et al., Respondents, v Victor N. Farley, as Administrator of the Estate of Christina W. Mills, Deceased, et al., Defendants, and G.P. Tralf, Inc., Doing Business as Tralfamadore Caf©, Appellant. (Action No. 1.) Therese Wisiorek, as Administratrix of the Estate of Anthony G. Wisiorek, Deceased, Respondent,
v
G.P. Tralf, Inc., Doing Business as Tralfamadore Caf©, Appellant, et al., Defendant. (Action No. 2.)

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Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered September 10, 2004. The order, insofar as appealed from, denied the motion of defendant G.P. Tralf, Inc., doing business as Tralfamadore Caf, for partial summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is [*2]unanimously affirmed without costs.

Memorandum: Plaintiffs Thomas Kish and Anna Kish, individually and as parents and natural guardians of Christina M. Kish, and Christina M. Kish, individually, commenced action No. 1 against, inter alia, defendants Victor N. Farley, as administrator of the estate of Christina W. Mills, and G.P. Tralf, Inc., doing business as Tralfamadore Caf© (Tralf), seeking damages for injuries sustained by Christina Kish (Kish) when the vehicle in which she was a passenger collided with a vehicle driven by Mills. Plaintiff Therese Wisiorek, as administratrix of the estate of Anthony G. Wisiorek, commenced action No. 2 against Tralf and Farley, as administrator of the estate of Mills. Anthony Wisiorek was driving the vehicle in which Kish was a passenger.

Supreme Court properly denied the motion of Tralf for partial summary judgment dismissing the cause of action pursuant to General Obligations Law § 11-101 and Alcoholic Beverage Control Law § 65 asserted in action No. 1 and the claim in action No. 2 asserting the violation of General Obligations Law § 11-101. Although Tralf met its initial burden on the motion by submitting affidavits in which its employees averred that they had no recollection that Mills was visibly intoxicated while she was a patron at Tralf's establishment, plaintiffs raised a triable issue of fact whether Mills "displayed signs of intoxication that should have alerted [Tralf's] employees" that she was intoxicated (Adamy v Ziriakus, 92 NY2d 396, 403 [1998]). Contrary to Tralf's contention, visible intoxication may be established by circumstantial evidence, including expert and eyewitness testimony (see id. at 401-403; Kelly v Fleet Bank, 271 AD2d 654, 655 [2000], lv denied 96 NY2d 702 [2001]). Indeed, the Legislature's use of the term "visibl[e]" in Alcoholic Beverage Control Law § 65 (2) does not require that visible intoxication "be established by direct proof in the form of testimonial evidence from someone who actually observed the allegedly intoxicated person's demeanor at the time and place that the alcohol was served" (Romano v Stanley, 90 NY2d 444, 450 [1997]).

While proof of high blood alcohol count alone generally does not establish visible intoxication, in this case plaintiffs submitted the affidavit of a physician who is a professor emeritus in the department of pharmacology and toxicology at a State University School of Medicine who did not rely solely on the blood alcohol level of Mills in concluding "within a reasonable degree of medical certainty" that she "probably exhibited visible signs of intoxication" while she was a patron at Tralf's establishment approximately 10 minutes before the accident occurred. Rather, the physician relied on the deposition testimony of Mills's "companion and co-habitant of 10 years," who according to the physician described Mills's visible signs of intoxication as "droopy eyes, fragmented, incoherent and irrational speech, plus a tearful and irritable demeanor." The physician also relied on statements from eyewitnesses that Mills was driving her vehicle in the wrong direction with her lights off and that she ignored the warnings of other drivers, who were sounding their horns and flashing their lights. We thus conclude that plaintiffs raised a triable issue of fact to defeat Tralf's motion. Present€"Pigott, Jr., P.J., Hurlbutt, Gorski and Smith, JJ.