Opinion
November 18, 1992
Appeal from the Supreme Court, Eire County, Flaherty, J.
Present — Denman, P.J., Pine, Lawton, Boehm and Doerr, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Defendant The Trolley Stop was entitled to summary judgment dismissing plaintiff's common-law negligence cause of action against it because the accident occurred beyond The Trolley Stop's sphere of control (see, Delamater v Kimmerle, 104 A.D.2d 242; Wright v Sunset Recreation, 91 A.D.2d 701). We conclude, however, that the court properly denied The Trolley Stop's motion for summary judgment with respect to plaintiff's Dram Shop cause of action because plaintiff raised a triable issue of fact whether the driver who injured plaintiff was visibly intoxicated when she was sold alcoholic beverages at The Trolley Stop (see generally, Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 1067-1068; cf., Terbush v Buchman, 147 A.D.2d 826).