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MOTION TO RENEW PROPERLY USED TO CORRECT DEFECT IN INITIAL PAPERS (DEPOSITION TRANSCRIPTS UNSIGNED), PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT BAR SERVED DRIVER WHEN HE WAS VISIBLY INTOXICATED (DRAM SHOP ACT).

The Second Department, reversing Supreme Court, determined a question of fact had been raised whether defendant bar (Danu) served the driver of the car in which plaintiff was injured when the driver was visibly intoxicated (Dram Shop Act). The court noted that defendant’s motion to renew its motion for summary judgment to correct a defect in the initial motion papers (the deposition transcripts were unsigned) was proper:

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“CPLR 2221(e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form” … . Here, Danu’s failure to provide signed copies of the deposition transcripts with the original summary judgment motion was tantamount to law office failure, which constituted a reasonable justification… . Thus, the Supreme Court properly granted that branch of Danu’s motion which was for leave to renew. * * *

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… [T]he 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. 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 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%. 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 … . Trigoso v Correa, 2017 NY Slip Op 03983, 2nd Dept 5-17-17

 

NEGLIGENCE (PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT BAR SERVED DRIVER WHEN HE WAS VISIBLY INTOXICATED (DRAM SHOP ACT))/CIVIL PROCEDURE (MOTION TO RENEW PROPERLY USED TO CORRECT DEFECT IN INITIAL PAPERS (DEPOSITION TRANSCRIPTS UNSIGNED))/DRAM SHOP ACT (PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT BAR SERVED DRIVER WHEN HE WAS VISIBLY INTOXICATED (DRAM SHOP ACT))/EVIDENCE (PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT BAR SERVED DRIVER WHEN HE WAS VISIBLY INTOXICATED (DRAM SHOP ACT))/RENEW, MOTION TO (MOTION TO RENEW PROPERLY USED TO CORRECT DEFECT IN INITIAL PAPERS (DEPOSITION TRANSCRIPTS UNSIGNED))

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