Fiegl v. 1695 Ridge Road Webster Inn Restaurant, Inc.

Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied the motion of defendants 1695 Ridge Road Webster Inn Restaurant, Inc. and Philip Cubiotti for summary judgment dismissing plaintiffs’ causes of action under the Dram Shop Act (General Obligations Law § 11-101).

*1025The accident which caused the injuries to plaintiff Dolores Fiegl and the deaths of plaintiff Mark Fiegl’s wife and child occurred shortly after codefendant Haydock left the Webster Inn. Although defendant submitted EBT testimony of several witnesses to the effect that Haydock did not exhibit any signs of being intoxicated, police at the scene of the accident had no difficulty determining that he had been drinking and was intoxicated. Haydock admitted that he had three martinis at the Webster Inn and did not go to any other bars between the time he left the Webster Inn and the accident, which occurred at 2:00 p.m. His blood alcohol level at 5:00 p.m. was .16/.17%. Plaintiffs’ expert opined that, based on the test results, Hay-dock would have to have consumed more than three martinis at lunch. Furthermore, Haydock pleaded guilty to driving while intoxicated. This evidence presents a question of fact concerning how much alcohol Haydock in fact consumed and whether he was actually or apparently intoxicated when served at the Webster Inn (see, Wasserman v Godoy, 136 AD2d 631, 632). (Appeal from order of Supreme Court, Wayne County, Strobridge, J.—summary judgment.) Present—Callahan, J. P., Doerr, Green, Balio and Davis, JJ.