Opinion
November 16, 1990
Appeal from the Supreme Court, Monroe County, Wesley, J.
Present — Dillon, P.J., Callahan, Boomer, Green and Balio, JJ.
Order and judgment unanimously affirmed without costs. Memorandum: Supreme Court correctly determined that a commercial vendor cannot be held liable under section 11-100 or 11-101 of the General Obligations Law absent proof that it sold alcoholic beverages directly to the alleged tort-feasor (General Obligations Law § 11-101; see also, Smith v. Guli, 117 A.D.2d 1017; Lee v. Holloway, 146 Misc.2d 455) or that it unlawfully furnished such beverages to an under-age person alleged to be the tort-feasor (General Obligations Law § 11-100).
The court did not abuse its discretion by entertaining defendant's application to renew a prior motion for summary judgment. The prior motion was denied because the court concluded that a factual issue existed whether the intoxicated driver or some other person actually purchased the beer from defendant vendor. Depositions conducted subsequent to that motion further supported the vendor's claim that it sold beer to someone other than the under-age driver and that the driver never entered the store. Consideration of those additional facts on a motion to renew was appropriate (see, Sciascia v. Nevins, 130 A.D.2d 649).