Baker v. John Harvards Brew House, LLC

In an action to recover damages for personal injuries pursuant to General Obligations Law § 11-101, the defendant Patricia Ann Cottage Pub, Inc., appeals from an order of the Supreme Court, Suffolk County (Burke, J.), dated August 9, 2006, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Ordered that the order is affirmed, with costs. The Supreme Court correctly determined that triable issues of fact exist as to whether the plaintiff caused or procured the intoxication of the driver of the vehicle involved in the accident which resulted in his alleged injuries (see Mitchell v The Shoals, Inc., 19 NY2d 338, 341 [1967]), and was thereby precluded from recovering damages under the Dram Shop Act (see General Obligations Law § 11-101). Accordingly, the court properly denied the appellant’s motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it (see Baker v D.J. Stapleton, Inc., 43 AD3d 839 [2007] [decided herewith]). Prudenti, PJ., Mastro, Angiolillo and Dickerson, JJ., concur.