In this personal injury action, arising out of a September, 2004 motor vehicle accident, Defendant Coco's Water Café, Inc. ("COCO'S") moves by Notice of Motion ( motion sequence number 002), pursuant to CPLR § 3212 for an order granting Coco's Summary Judgment, dismissing the Plaintiff's Complaint, on the ground that Plaintiff cannot sustain his claim under GOL § 11-101 (commonly referred to as the "Dram Shop Act"). Defendant, Main Street Café of Northport, Inc.("MAIN STREET CAFé") moves, by Notice of Motion (motion sequence number 003), pursuant to CPLR § 3212, for an Order granting MAIN STREET CAFé Summary Judgment, dismissing the Plaintiff's Complaint against that Defendant on the same basis as the Co-Defendant, COCO'S. Plaintiff, BRIAN HARRIS, cross-moves, by Notice of Cross-Motion (motion sequence number 004), pursuant to CPLR § 2215, for an Order, striking COCO'S Answer due to that party's alleged failure to produce a witness at a scheduled deposition. Plaintiff also opposes both Summary Judgment motions, asserting that he should be afforded the opportunity to take disclosure of the Defendants' witnesses and that sufficient questions of fact have been raised from the depositions of both Plaintiff and Co-Defendant GREGORY M. MCDOWELL ("MCDOWELL"). Defendants also oppose the Plaintiff's cross-motion, asserting that any failures to conduct discovery resulted from the Plaintiff's refusal to attend a deposition when Defendant MAIN STREET CAFé made [*2][*3]a witness available.

At issue in these motions are the provisions of General Obligations Law § 11-101. The statute provides as follows:

"Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages."

To succeed in proving a violation of the Dram Shop Act, Plaintiff must demonstrate that the entity serving and/or permitting the procurement of the alcohol, did so to a visibly intoxicated person. see, Donato v McLaughlin, 195 AD2d 685, 599 NYS2d 754 ( 3d Dep't 1993); Gonyea v Folger, 133 AD2d 964, 520 NYS2d 670 ( 3d Dep't 1987); see also, Pizzaro v City of New York, 188 AD2d 591, 591 NYS2d 485 ( 2d Dep't 1992); Alcohol Beverage Control Law § 65 (2).

Based on the deposition of Co-Defendant, GREGORY M. MCDOWELL, both COCO'S and MAIN STREET CAFé argue that there has been no evidence presented that either establishment served liquor to an intoxicated individual, visibly or otherwise. They relate MR. MCDOWELL's version of events of the day, in which he admits ordering several drinks during dinner at COCO'S Restaurant, which he left by boat and accepting a drink later that evening at MAIN STREET CAFé from a friend who had it waiting for him. In addition, both Defendants rely on an Affidavit of the MAIN STREET CAFé bartender, in which he denies serving liquor to a visibly intoxicated person and the denials contained in the pleadings.

Citing Donato v McLaughlin, supra , and J.S.M. Contracting, Inc. v Old Route 6 Pub Ltd., 129 Misc 2d 604, 493 NYS2d 930 ( Sup. Ct. West. Co. 1985), COCO'S and MAIN STREET CAFé assert that, having set forth evidence negating the allegation that alcohol was served to an intoxicated person, the burden then shifts to the Plaintiff to present evidence sufficient to sustain the inference of intoxication. Having failed to do so, those Defendants argue they are entitled to dismissal of the GOL claims against them.

Plaintiff, on the other hand, argues both that there exists sufficient evidence from the disclosure thus far to defeat Summary Judgment and asserts that he should be permitted to pursue disclosure of these Defendants thus rendering Summary Judgment at [*4][*5]this stage premature. In support of his argument, he sets forth the allegation that the Co-Defendant MCDOWELL fled the scene of the accident after hitting the Plaintiff's automobile following crossing a double yellow line; that MCDOWELL himself admits to having consumed several alcoholic beverages at the two Co-Defendants' establishments prior to the accident during the evening in question; and that MCDOWELL admits that he "procured" alcohol at both establishments. Plaintiff asserts that he is entitled to disclosure from witnesses concerning MCDOWELL's behavior and appearance while at the two establishments during the night of the accident.

In reply to the Plaintiff's cross-motion, to dismiss, MAIN STREET's attorney asserts that he did make a witness available for a deposition in early 2007 but that the Plaintiff insisted that all discovery was stayed as a result of the pending Summary Judgment motions.

CPLR § 3212 (f) permits a party opposing Summary Judgment to obtain further discovery, when it appears that certain facts within the knowledge and control of the movant and supporting the Plaintiff's position may exist, but that they cannot yet be stated. see, Juseinoski v New York Hosp. Medical Center of Queens, 29 AD3d 636, 815 NYS2d 183 ( 2d Dep't 2006). Thus although the Defendants have correctly set forth the requirements for successful pursuit of a lawsuit under the Dram Shop Act and the Alcohol Beverage Control Law, Plaintiff has not had the opportunity at this juncture to take the depositions of either of the Co-Defendants' employees or, indeed of any of the witnesses to the behavior of MCDOWELL at the two different establishments during the night in question. see also, Dromgoole v T-Foots, Inc., 309 AD2d 1186, 764 NYS2d 900 ( 4th Dep't 2003).

In Donato v Mclaughlin, supra , the motion for summary Judgment was made "after pretrial discovery was conducted". The motion for Summary Judgment in Terbush v Buchman, 147 AD2d 826, 537 NYS2d 916 (3d Dep't 1989), cited by Co-Defendants, was also made "after all the parties answered and conducted pretrial discovery". The Summary Judgment motion in Pizzaro v City of New York, supra , was also made "following discovery".

While the Court is aware that MAIN STREET CAFé did apparently make a witness available for a deposition, this occurred during a period where all discovery was stayed by operation of law, due to that party's Summary Judgment motion. see, CPLR § 3214(b). With regard to the Plaintiff's cross-motion to dismiss for failure to comply with discovery demands, in view of the pendency of these motions, it should likewise be denied. The parties should now [*6][*7]proceed forthwith to conduct and complete the discovery of all parties and all non-party witnesses.

For the foregoing reasons the Motions by Defendants COCO'S and Defendant MAIN STREET CAFé for Summary Judgment are denied pursuant to CPLR §3212 (f) with right to renew following completion of all pretrial disclosure; the cross-motion by Plaintiff to dismiss is denied and all parties are directed to continue with disclosure, including document production and depositions as set forth. This constitutes the DECISION and ORDER of the Court.

Dated: May 8, 2007 Riverhead, New York

EMILY PINES J. S. C.