New York Court Holds That Questions of Fact Preclude Summary Judgment to Bar in Dram Shop Action

October 8, 2015

In Tansey v. Coscia, plaintiff brought a negligence action against a bar and other parties as a result of personal injuries sustained from an assault at the bar by another patron, Nicholas Coscia. Plaintiff alleged that the bar was negligent in unlawfully serving alcohol to Coscia because he was an underage and visibly intoxicated person under the Dram Shop Act. The defendant bar moved for summary judgment on the basis that there was no evidence that it unlawfully served alcohol to Coscia.

The Supreme Court of Suffolk County examined the factual evidence in the case, including numerous depositions, and concluded that the defendant bar failed to demonstrate the absence of any triable issues of fact, which necessitated the denial of the summary judgment motion. Under the New York Dram Shop Act, in order to prevail on summary judgment, the defendant bar must submit evidentiary proof that it did not unlawfully serve alcohol to an underage person or to a visibly intoxicated person.

The factual record in this case included deposition testimony by plaintiff, Coscia, a security person at the bar, and the manager at the bar. Coscia testified that he was underage and did drink inside of the bar. In support of its motion, Defendant relied on the testimony of plaintiff and the security person, who both testified that they did not see Coscia drinking inside of the bar.

Looking at the totality of the factual evidence, however, the court determined that the bar’s reliance on the testimony of Plaintiff and the security person was inadequate to negate the possibility that the bar served Coscia alcohol when it knew or had reasonable cause to know that he was underage and/or visibly intoxicated. The court similarly found that Plaintiff’s Cross-Motion for Summary Judgment was also not adequately supported by the evidence and denied that motion as well. While the defendant bar could not make a prima facie showing that it had not served Coscia, it did raise questions of fact as to whether it had, which was enough to defeat plaintiff’s summary judgment motion.