Hale v. DeMino ( 1992 )

Order unanimously affirmed with costs. Memorandum: Plaintiff raised questions of fact by submitting evidentiary proof in admissible form in opposition to defendant Bowl-A-Roll’s motion for summary judgment and thus the denial of summary judgment was proper (see, Zuckerman v City of New York, 49 NY2d 557, 562). The contradictions in defendant DeMino’s criminal trial and deposition testimony raised an issue of fact whether Bowl-A-Roll directly sold an alcoholic beverage to him, and Dr. Smith’s affidavit and Deputy Thorpe’s criminal trial testimony raised an issue of fact whether DeMino was visibly intoxicated at Bowl-A-Roll. With respect to Bowl-A-Roll’s argument regarding proximate cause, Deputy Hanretty’s affidavit constituted evidence that a sober person could not have avoided striking decedent, who was on foot in a

driving lane of Route 590 at 1:00 a.m., but there was no evidence that a sober person could not have slowed down enough to avoid killing him. (Appeal from Order of Supreme Court, Monroe County, Wisner, J. — Summary Judgment.) Present — Boomer, J. P., Pine, Lawton, Boehm and Davis, JJ.