Nesbitt v. Jackson

— Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: Plaintiffs appeal from an order granting defendants’ motion [932] for summary judgment dismissing plaintiffs’ negligence and Dram Shop claims. The Dram Shop cause of action should not have been dismissed. In opposition to defendants’ motion, plaintiffs raised a triable issue of fact on that cause of action. They adduced competent eyewitness and expert opinion testimony tending to establish, circumstantially, that decedent was intoxicated at the time he was sold alcoholic beverages (cf., Fiegl v 1695 Ridge Rd. Webster Inn Rest., 162 AD2d 1024, 1025; see also, Scheu v High-Forest Corp., 129 AD2d 366, 368, 371). Accordingly, the order is modified to deny defendants’ motion in part and to reinstate plaintiffs’ fourth cause of action. (Appeal from Order of Supreme Court, Cayuga County, Corning, J. — Summary Judgment.) Present — Denman, P. J., Doerr, Boomer, Pine and Balio, JJ.