You are here: / / DEFENDANT DID NOT PRESENT SUFFICIENT EVIDENCE TO WARRANT SUMMARY JUDGMENT...
,

DEFENDANT DID NOT PRESENT SUFFICIENT EVIDENCE TO WARRANT SUMMARY JUDGMENT IN THIS DRAM SHOP ACT CASE; POINTING TO GAPS IN PLAINTIFF’S PROOF WILL NOT MEET THE BURDEN OF PROOF AT THE SUMMARY JUDGMENT STAGE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant in this Dram Shop Act did not present enough evidence to warrant summary judgment, noting that pointing to gaps in plaintiffs’ proof never sufficient:

Defendant failed to establish its prima facie entitlement to summary judgment dismissing plaintiffs’ claim based on violation of the Dram Shop Act (General Obligations Law § 11—101; Alcoholic Beverage Control Law § 65[2]). “[A] defendant when moving for summary judgment cannot merely point to gaps in the plaintiffs’ evidence, but must affirmatively demonstrate entitlement to summary judgment” … .

Although defendant’s manager testified about employee training and practices generally, his testimony regarding the incident at issue—including, inter alia, that he did not know whether any patrons were intoxicated on the date of the alleged incident, that he was not aware of anyone being asked to leave the establishment due to intoxication during the month of the incident, and that defendant did not keep records of intoxicated individuals—failed to carry defendant’s initial burden. Defendant’s further “reli[ance] on plaintiffs’ inability to prove that the assailants were served alcohol or were intoxicated” was similarly insufficient to carry its prima facie burden … . Bauseman v Pamdh Enters. Inc., 2023 NY Slip Op 05355, First Dept 10-24-23

Practice Point: Defendant’s pointing to gaps in plaintiffs’ proof is not be enough to support summary judgment.

 

You might also like
A SUPPRESSION MOTION CANNOT BE DENIED ON A GROUND NOT RAISED BY THE PEOPLE (FIRST DEPT).
IT WAS ALLEGEDLY EVIDENT FROM THE EMPLOYEE’S JOB APPLICATION THAT HE HAD BEEN IN PRISON; THE ALLEGED FAILURE TO INVESTIGATE RAISED QUESTIONS OF FACT IN SUPPORT OF THE NEGLIGENT HIRING AND SUPERVISION CAUSE OF ACTION; THE CORRECTION LAW DOES NOT PROHIBIT CONSIDERATION OF PRIOR CONVICTIONS (FIRST DEPT). ​
Review Criteria for Arbitration Award Explained; Contract Entered Into by Unlicensed Interior and Architectural Design Business Did Not Violate Public Policy
CHALLENGE TO THE JURY INSTRUCTION ON CAUSATION OF DEATH IS SUBJECT TO THE PRESERVATION REQUIREMENT; DEFENDANT’S FAILURE TO OBJECT PRECLUDES REVIEW; STRONG DISSENT ARGUED THE JURY INSTRUCTION IS REVIEWABLE BECAUSE IT RELIEVED THE PEOPLE OF THEIR BURDEN OF PROOF.
Summary Judgment May Be Based Upon an Unpled Affirmative Defense/Oral Waiver May Be Effective in the Face of a “Written Waiver” Requirement in the Contract
“Plain View” Doctrine Does Not Require Certainty Seized Item Is Contraband
In Spite of Settlement of Underlying Action, the Legal Malpractice Case Alleging Failure to Adequately Investigate Can Go Forward
THE JURORS IN THIS ATTEMPTED ROBBERY CASE SAW AN INTERNET VIDEO OF DEFENDANT’S CODEFENDANT VIOLENTLY CAUSING A MAN’S DEATH; THE VIDEO HAD NOT BE INTRODUCED OR MENTIONED AT TRIAL; SUPREME COURT SHOULD HAVE GRANTED THE MOTION TO SET ASIDE THE VERDICT (FIRST DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE DIRECT BENEFITS THEORY OF ESTOPPEL WAS NOT APPLICABLE TO PLAINTIFF, A NONSIGNATORY... THE DECLARATORY JUDGMENT ACTION ALLEGING THE COUNTY TAX MAP VERIFICATION FEES...