Third-party defendant The Sports Bar seeks an order: (1) dismissing the third-party complaint for failure to state a cause of action under General Obligations Law 11-100 and/or 11-101; or, in the alternative, (2) awarding summary judgment in its favor dismissing the third-party complaint on the merits.^[FN1]

This motion was originally returnable December 15, 2006, but adjourned due to on-going attempts to locate and depose non-party witnesses. The court ultimately heard oral argument on April 4, 2007 from defendant and third-party plaintiff Washington Building Management Company (hereinafter "Washington") and third-party defendant The Sports Bar. Neither plaintiff Daniel S. Tratt nor third-party defendant Uncle Tony's Bar appeared at motion term or submitted any papers in relation to this motion.

There are two aspects of this case. The main action involves a premises liability action in which plaintiff Tratt sued defendant Washington - his landlord - for failing to provide and/or maintain an adequate railing for an interior staircase near the front entrance of an apartment building located at 217 Washington Street in Binghamton, New York. The third-party action involves the defendant-landlord (Washington) who in turn commenced a third-party action against two taverns (Uncle Tony's and The Sports Bar) under the Dram Shop Act. More specifically, Washington's theory of liability in the third-party action is that both Uncle Tony's and The Sports Bar violated GOL 11-100 and 11-101 by serving alcohol to plaintiff, a minor and/or visibly intoxicated person, thereby entitling Washington to contribution and/or indemnity for the "injuries" suffered by Washington (e.g. due to its potential liability to plaintiff).

In the spring of 1999, plaintiff Daniel S. Tratt, age 20 at the time, was a junior at Binghamton University and lived off campus in his Sigma Alpha Epsilon ("SAE") fraternity house/apartment building at 217 Washington Street in Binghamton, New York which was owned by defendant Washington. In the early morning hours of May 12, 1999, plaintiff suffered catastrophic injuries in a fall of approximately twenty feet from a third floor landing onto a second floor landing inside the fraternity house/apartment building. Plaintiff is permanently paralyzed from the waist down as a result of this fall.

The events of May 12, 1999 started to unfold the previous night when plaintiff made the tragic choice to engage in underage drinking. The evening of May 11, 1999 must be recreated based upon deposition testimony of various witnesses, the police report, and medical reports, [*2]since plaintiff himself has no recollection of the day prior to his accident or the fall itself.^[FN2]

Rick Hyman attended Binghamton University and was a fellow member and roommate of plaintiff at the SAE fraternity house. According to Mr. Hyman, on the afternoon of May 11, 1999, SAE held a barbecue on the roof of the fraternity house which included some drinking. Mr. Hyman recalls plaintiff arriving at the roof to "hang out" after finishing a test (Hyman EBT, pp 20-21). In the late evening of May 11, 1999, Mr. Hyman stated that plaintiff and other friends decided to go into downtown Binghamton to some local bars.

Mr. Hyman recalls he was at Uncle Tony's in the early morning hours of May 12, 1999, when somebody told him to go next door [to The Sports Bar] and get plaintiff and take him home (Hyman EBT, p 27). Mr. Hyman recalled the sequence of events as follows:

Q:Did you find Dan [plaintiff] at The Sports Bar?

A:Yes.

Q:Where was he in The Sports Bar?

A:Sitting in a chair.

Q:At the bar?

A:Yes.

Q:So he was on a bar stool?

A:Yes.

Q:Was he drinking?

A:I don't remember.

Q:Was there a bottle or glass in front of him?

A:I don't remember.

Q:What observation did you make when you saw Dan sitting at the bar, at The Sports Bar as to his condition?

A:The observation I made was that he was a little drunk and we should go home.

(Hyman EBT, pp 28 & 29).

Mr. Hyman further stated as follows:

Q:It's fair to say that you didn't see Dan drinking any alcoholic beverages in The Sports Bar?

A:Yes. [*3]

Q:When you say 'yes,' that means you did not see him drinking anything?

A:Yes, I did not see him drinking anything.

(Hyman EBT, p 68).

Mr. Hyman recalled walking back to 217 Washington Street with plaintiff and some other friends. When they arrived at the fraternity house, Mr. Hyman stated that plaintiff broke the plexiglass in the front door and then recalled plaintiff chasing friends up the interior stairway and wrestling around (Hyman EBT, p 33).^[FN3] After going downstairs to use the rest room, Mr. Hyman was standing on the first landing (between the second and third floor) and looked up to see plaintiff on the stairs (between the third and fourth floor) and then fall sideways over the railing (Hyman EBT, p 39).

Mr. Hyman was also interviewed by the City of Binghamton police department which investigated this accident.^[FN4] The Police Report indicates that emergency services received a call at 1:04 a.m. on the morning of May 12, 1999 that a man had fallen at 217 Washington Street (Cahill Affidavit, Ex C). Police officer Petryszyn responded to the scene and found plaintiff unconscious. Officer Petryszyn's report states that he interviewed Mr. Hyman at Wilson Hospital on the date of the accident and was advised by Mr. Hyman as follows:

[h]as out drinking with Tratt from around 8:30 pm 5-11-99 to approx 10:30 pm at Uncle Tony's Bar. Hyman didn't know how much Tratt drank but stated he was really drunk and ended up getting thrown out of the bar because he was throwing up. Assumed Tratt was going home but at approx 12:30 another friend told him he should go get Tratt out of the Sports Bar because he was really drunk. Hyman stated he then went to get Tratt and walked him home.

(Cahill Affidavit, Ex C; emphasis added).

The next non-party witness to provide deposition testimony was Peter Nenadich. Mr. Nenadich also attended Binghamton University with plaintiff and was a member of the same SAE fraternity. Although Mr. Nenadich never lived at the fraternity house located at 217 Washington Street, he attended various meetings and parties at that location. On the evening of May 11, 1999, Mr. Nenadich recalls going to Uncle Tony's around 9:00 p.m. and leaving at approximately 1:00 a.m. Mr. Nenadich stated that plaintiff was at Uncle Tony's for a significant portion of that same time period, but recalls plaintiff leaving Uncle Tony's before him although he was unsure of the exact time. [*4]

Mr. Nenadich stated he left Uncle Tony's after being told by "[s]omebody that came in from the outside, that Dan was in front of the Sorts [sic] Bar and need to go home. So Rick and I left to go back home with Dan" (Nenadich EBT, p 25). The witness further recalled that he "[s]topped in front of the Sports Bar because Dan was in [the] Sports Bar at the time. He left and Rick and I met Dan at the Sports Bar and walked back to 217 Washington Street" (Nenadich EBT, p 25). Mr. Nenadich also stated that he met plaintiff on the sidewalk in front of the Sports Bar and observed that "I would say that he was probably drunk, yes, if that's what your looking for" and "[h]e was, for lack or [sic] a better word, swaying, I guess. He wasn't solid on his feet" (Nenadich EBT, p 27).

Next, The Sports Bar submits the deposition testimony of its co-owner, Donald P. Jackson (Cahill Affidavit, Ex D).^[FN5] Mr. Jackson is an absentee owner who resides in Colorado. Mr. Jackson did not have any personal knowledge regarding the events of May 11 and 12, 1999 as he was not present in the bar on those dates. Mr. Jackson stated, however, that his two sisters were bartending at the times in question and that both had told him that they had no recollection of plaintiff on May 11 or 12, 1999. Mr. Jackson also stated that due to the bar's concern about underage drinking by university students it started a control process at the door in approximately 1998 to check driver's licenses for forgeries with a special light.

Also submitted to the court were several of plaintiff's medical reports, including the laboratory reports confirming that he had a blood alcohol content on May 12, 1999 of .26% (Supplemental Affidavit of P. David Twichell, Esq., Ex A).

Two other potential non-party witnesses warrant mention. This court granted an adjournment of this motion originally scheduled for December 15, 2006 to permit Washington additional time to depose other non-party witnesses, Brian Zakrocki located in London and Ronald Borish serving in Iraq and tentatively scheduled to return in July 2007. At oral argument, the parties were unable to provide any additional information regarding a timetable regarding deposing these non-party witnesses, and at The Sports Bar's insistence, this motion went forward.

On May 20, 2004,Washington filed a third-party action against The Sports Bar and Uncle Tony's.^[FN6] The third-party complaint alleges that Uncle Tony's and The Sports Bar violated GOL 11-100 and 11-101 by serving alcohol to plaintiff, a minor and/or visibly intoxicated person, thereby entitling Washington to contribution and/or indemnity for the "injuries" suffered by [*5]Washington (e.g. due to its potential liability to plaintiff).^[FN7]

By way of the first portion of this motion, The Sports Bar argues that Washington's third-party complaint fails to state a cause of action under the Dram Shop Act. More specifically, The Sports Bar argues that Washington cannot state a cause of action under either GOL 11-100 or 11-101 in an attempt to defer some of its potential liability in the underlying premises liability action, because the Dram Shop Act is meant to protect the traveling public, not to provide an offset for money damages.

Generally, it is well-settled that the vendor of alcohol and the intoxicated tortfeasor may claim contributions among themselves (Herrick v Second Cuthouse, Ltd., 100 AD2d 952 [1984]). Here, the issue is whether a third-party alleged tortfeasor may seek contribution and/or indemnification from the purported vendor of alcohol. Although the case law is sparse, this court finds that contribution and/or indemnification is proper under these circumstances.

The court finds the case of Johnson v Plotkin, 172 AD2d 88 (1991), to be instructive.

[*6]Johnson involved a one-car accident with a driver and two passengers. The driver and one passenger were killed and the other passenger was injured. In the main action, plaintiffs (the injured passenger and the administratrix of the deceased passenger) sued the driver's estate, as well as Sullivan County, the Town of Thompson, and two taverns. The defendants all cross- claimed against each other, but the Town's cross claims against the other defendants for contribution were dismissed. Upon appeal, the Third Department stated as follows:

[t]he Town's cross claims for contribution against defendants are based upon the theory that plaintiffs' injuries are due at least in part to defendants' illegal sales of alcohol, so that defendants are subject to liability for compensatory damages under the Dram Shop Act.... The Town, which is alleged to have been negligent, is subject to liability for damages for the same injuries, and therefore, may claim contribution from defendants [citations omitted]. The cross claims for contribution based upon allegations that defendants violated the Dram Shop Act are not dependent upon the theory of liability asserted by plaintiffs [citation omitted].

(Johnson, 172 AD2d at 90 [1991]).^[FN8]

Although the procedural posture of the parties in the Johnson case is not identical to the situation here, the court finds the distinction between the cross claims in Johnson and the third-party action here to be a distinction without a difference (CPLR 1007). Furthermore, while the court recognizes that plaintiff here is not an innocent party such as the passenger plaintiff in Johnson, to prohibit Washington from pursuing the taverns would deny Washington the right of contribution against potential tortfeasors under the Dram Shop Act. In short, Washington's third-party action against third-party defendants Uncle Tony's and The Sports Bar alleging that said third-party defendants violated the Dram Shop Act need not be dependent upon the theory of liability asserted by plaintiff in the main action (Johnson, 172 AD2d at 90 [1991]).

Based upon the foregoing, the court finds Washington's cause of action for contribution and/or indemnity against The Sports Bar is proper. Consequently, The Sports Bar's motion to dismiss the third-party action for failure to state a cause of action under the Dram Shop Act will be denied.

II.The Sports Bar's motion for summary judgment on the merits

Having denied The Sports Bar's first motion, the court now turns to The Sports Bar's alternative argument that it is entitled to summary judgment in its favor dismissing the third-party complaint on the merits. The Sports Bar argues that summary judgment is warranted because Washington "[h]as failed to provide through discovery or depositions any evidence [*7]which would create a material issue of fact and indicate that [The Sports Bar] served, provided or sold alcoholic beverages or caused the intoxicated state of the underlying Plaintiff as required under General Obligation Law § 11-100 and § 11-101" (Cahill Affidavit, ¶ 13).

In opposition, Washington argues that a moving party may not move for summary judgment based solely upon claimed deficiencies in the non-moving party's proof without submitting evidence in support of the motion (Welton v Drobnicki, 298 AD2d 757 [2002]). Washington further argues that the burden is on The Sports Bar as the moving party to establish as a matter of law that it did not serve alcohol to the minor or visibly intoxicated person, not on Washington to prove otherwise.

There was much disagreement between the parties on the applicable burden of proof with respect to this portion of the motion. The court finds that the initial burden on this motion is on The Sports Bar to negate the possibility that it unlawfully served alcohol to a visibly intoxicated person or minor (Costa v 1648 Second Ave. Restaurant Inc., 221 AD2d 299 [1995]; Sahr v Schmidli, 236 AD2d 785 [1997]; McGovern v 4299 Katonah Inc., 5 AD3d 239 [2004]).^[FN9]

If The Sports Bar fails to make such an initial showing, then the motion must be denied regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). However, if The Sports Bar meets said burden, then the burden shifts to Washington to come forward with proof in admissible form sufficient to create question of fact as to whether such illegal sale took place (Terbursh v Buchman, 147 AD2d 826 [1989]).

For purposes of this motion the following facts are undisputed: plaintiff was visibly intoxicated at Uncle Tony's and was asked to leave that establishment after throwing up; plaintiff - a minor - was seen sitting at a bar stool at The Sports Bar shortly thereafter; plaintiff was described as drunk, swaying and not solid on his feet after leaving The Sports Bar; and plaintiff had a blood alcohol content reading of .26% after his accident.

The court finds The Sports Bar's proof to be insufficient to meets its burden of proof on this motion. Mr. Jackson readily admitted that he was not present in the bar on either May 11 or 12, 1999. Mr. Jackson's deposition testimony contains merely hearsay references to statements from his two sisters/bartenders that they had no recollection of plaintiff on the dates in question. Additionally, Mr. Jackson makes only vague references to a policy started sometime in 1998 of checking driver's licenses at the door with a special light to exclude underage persons.

The Sports Bar did not submit any affidavit from any of the bartenders on duty during the times in question stating that they did not recall plaintiff or denying that they served alcohol to a visibly intoxicated man during that time frame (Kish v Farley, 24 AD3d 1198 [2005]). The failure to produce any such affidavit from someone with firsthand knowledge of the evening in question is in direct contrast to case law finding that affidavits from employees on duty at the [*8]time of an alleged incident disavowing any recollection of the intoxicated person were deemed sufficient to satisfy the initial burden of proof negating the possibility that alcohol was unlawfully served to a minor or visibly intoxicated person (McGilveary v Baron, 4 AD3d 844, 845 [2004]; Kish, 24 AD3d 1198 [2005]). The Sports Bar reliance on the Mr. Nenadich's deposition testimony that although he saw plaintiff on a bar stool inside The Sports Bar he could not recall whether he saw him drinking at that establishment does not negate the possibility that alcohol was unlawfully served to plaintiff.

Additionally, The Sports Bar did not provide an affidavit from the bouncer on duty on the date in question relative to what, if any, procedures were actually used by The Sports Bar to check driver's licenses at the door. Based upon Mr. Hyman's observation that he saw the minor plaintiff sitting on a bar stool inside The Sports Bar in the early morning hours of May 12, 1999 it is undisputed that this minor made it past whatever procedures, if any, The Sports Bar had in place.

In sum, this court finds that based upon this record, combined with the lack of submissions from any bartender and/or bouncer on duty the night in question, that The Sports Bar has failed to meet its burden of negating the possibility that alcohol was unlawfully served to plaintiff as a minor and/or visibly intoxicated person (Johnson, 172 AD2d 88, 91). Consequently, the court finds that The Sports Bar's motion for summary judgment with respect to the merits of GOL 11-100 and/or 11-101 must be denied.

In view of the foregoing, the court finds that The Sports Bar's motion to dismiss the third-party complaint and all cross-claims is DENIED; and The Sports Bar's motion for summary judgment of third-party complaint on the merits is also DENIED.

This decision shall constitute the order of the court.

Dated: May 16, 2007

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court

ALL PAPERS SUBMITTED IN CONNECTION WITH THIS MOTION HAVE BEEN FILED, ALONG WITH THE ORIGINAL DECISION AND ORDER, WITH THE BROOME COUNTY CLERK