ADDITIONAL CASES Alisa McMorris, as the Administratrix of the Estate of A.M., Deceased, Plaintiff v. Thomas Murphy, Town of Brookhaven, County of Suffolk, Swan Lake Golf Corp., Swan Lake Golf Club, Eagle’s Nest Café, Inc., Swan Lake Restaurant and Swan Lake Caterers, LLC, Defendants; 611922/2019 Kevin Lane, father and natural guardian of Thomas Lane, infant, and Denis Lane, infant, and Kevin Lane, individually, Plaintiffs v. Thomas Murphy, Town of Brookhaven, County of Suffolk, Swan Lake Golf Corp., Eagle’s Nest Café, Inc. and Swan Lake Caterers, LLC, Defendants; 621626/2019 Motion Sequences 005, 006, 007 and 008 made under Index Number 621626/2019, Motion Sequences 007, 008, and 009 made under Index Number 606481/2019, and Motion Sequences 007, 008, and 009 made under Index Number 611922/2019 are hereby consolidated for determination, these matters having been joined for all purposes, including for joint trial. These joined actions arise from a motor vehicle accident that occurred on September 30, 2018, at approximately 1:56 p.m. It is undisputed that Murphy and his three friends (Steve Meola, Christopher DiMaria, and Raymond O’Brien) played golf at Swan Lake Golf Club commencing at approximately 8:25 a.m., and that during the round of golf, vodka was consumed by DiMaria, O’Brien and Murphy. They finished their game at approximately 1:15 p.m. and left the golf course. DiMaria was in his own car. Behind him was defendant Murphy alone in his vehicle, and O’Brien and Meola were behind Murphy in O’Brien’s vehicle. Specifically, it is alleged that the defendant, Thomas Murphy, was intoxicated at the time of the accident. Murphy was operating his motor vehicle on David Terry Road, in the Town of Brookhaven, when he veered to the right, outside his lane of travel, and struck a group of Boy Scouts who were hiking with their leaders. The Boy Scout troop was not hiking in the travel portion of the roadway. As a result of Murphy veering outside his lane of travel, his vehicle struck members of the Boy Scout troop, including Kaden Lynch, Brett Lynch, Kevin Lane, Thomas Lane, and Denis Lane, injuring them; the infant plaintiff McMorris was killed. It is further undisputed that Thomas Murphy was convicted after trial of Aggravated Vehicular Homicide, Manslaughter Second Degree, Assault Second Degree, Vehicular Assault Second degree (all felonies), Assault Third Degree, and Reckless Driving (misdemeanors). Murphy is currently serving an indeterminate upstate prison sentence of eight and one-third (8 1/3) to twenty-five (25) years for his crimes. Swan Lake Golf Corp. (Corp) and Swan Lake Caterers, LLC (Caterers) each seek summary judgment dismissal of the complaint in each of the joined actions. Plaintiffs McMorris and Lane each seek summary judgment on the issue of liability against all named defendants in their respective actions. The Lynch plaintiffs have not moved for summary judgment. Defendant Thomas Murphy has not responded and/or opposed any of the motions. The Court recognizes that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact (Andre v. Pomeroy, 35 NY2d 361[l974]). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact (Cauthers v. Brite Ideas, LLC, 41 AD3d 755 [2d Dept 2007]). The Court’s analysis of the evidence must be viewed in the light most favorable to the non-moving party (Makaj v. Metropolitan Transportation Authority, 18 AD3d 625 [2d Dept 2005]). “The Supreme Court’s function on a motion for summary judgment is issue finding, not issue determination” (Trio Asbestos Removal Corp. v. Gabriel & Sciacca Certified Public Accountants, LLP, 164 AD3d 864, 865 [2d Dept 2018]). The proponent of a summary judgment motion must tender sufficient evidence to demonstrate the absence of any material issue of fact (Winegrad v. New York University Medical Center, 64 NY2d 851, 853 [1985]). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Id.) “Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). “Where credibility assessments are interwoven with factual disputes, as is often the case, summary judgment must ordinarily be denied. Credibility assessments cannot be made by the assigned judge in granting or denying motions for summary judgment. Doing so would be like applying a square peg to a round hole. Instead, it is the role of a trier of fact in a courtroom to assess witness credibilities and decide the extent to which those assessments drive the ultimate verdict to be rendered. It is during the trial, and not by the summary judgment procedure, that witnesses can be heard on direct and cross-examination and their credibilities assessed by considering how convincing or forthright their testimony is viewed, the consistence of testimony when measured against other evidence of the case, eye contact and body language, and common sense” (Hon. Mark C. Dillon, Practice Commentaries, McKinney=s Cons Laws of NY, Book 7B, CPLR C3212:6, at 17-18; see also Donato v. ELRAC, Inc., 18 AD3d 696 [2d Dept 2005]; Frame v. Markowitz, 125 AD2d 442 [2d Dept 1986]). Corp’s Summary Judgment Motions (Sequences 005, 007, 008) Corp maintains that it should be granted summary judgment dismissal of the complaints alleging violation of General Obligations Law (GOL) §11-101 (Dram Shop Act) and common law negligence because it did not sell alcohol; it did not furnish or assist in procurement of alcohol; it is the landlord of Caterers, and it did not violate Alcoholic Beverage Control (ABC) Law §65. General Obligations Law §11-101 provides that, “[a]ny 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 to 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.” “In order to establish liability for violation of the Dram Shop Act, the plaintiff is required to prove that the defendants sold alcohol to [co-defendant Murphy] while he was ‘visibly intoxicated’” (Sullivan v. Mulinos of Westchester, Inc., 73 AD3d 1018, 1019 [2d Dept 2010]; see also ABC Law §65 [2] ["Any visibly intoxicated person"]).1 “[P]roof of a high blood alcohol content does not, without more, provide a sound basis for drawing inferences about a person’s appearance or demeanor” (Sullivan, supra at 1020). “Proof of visible intoxication can be established by circumstantial evidence, including expert and eyewitness testimony” (Poppke v. Portugese Am. Club of Mineola, 85 AD3d 751, 752 [2d Dept 2011]). In support of its motion, Corp submits the pleadings, a copy of the lease executed between it and Caterers that was in effect on the date of the subject accident, the deposition testimony of Kevin Lane, Thomas Murphy, Charles Jaramillo (an owner of Caterers), Loraine Prezleski (beverage cart operator for Caterers), Donald Jurgens (former owner/president of Corp), Elena Vasilikos (food and beverage manager of Caterers), and Joseph Stonitsch (pro shop attendant for Corp). Corp also submits the certified trial transcripts of Christopher DiMaria and Steve Meola, each of whom testified at Thomas Murphy’s criminal trial, and both of whom played golf with Murphy on the day of the subject accident. The lease provided that Caterers was permitted to operate a bar and grill/catering facility on the grounds of the golf club. According to one of Caterers’ owners, Charles Jaramillo, Caterers did not run the pro shop on the grounds, Corp ran the pro shop. Running the restaurant included the sale of alcohol, and Caterers hired employees to run the day-to-day operations. Caterers also had a liquor license permitting it to sell alcohol at the catering hall and restaurant, and to operate a beverage/food cart on the golf course although the license did not permit Caterers to sell hard liquor on the food/beverage cart, only beer and soft drinks. The alcohol sold by Caterers was purchased by Caterers. Based upon the testimony of Vasilikos, Caterer’s manager, and Prezleski, the beverage cart operator, both were employees of Caterers, not of Corp. Prezleski testified that she sold three airplane-sized bottles of vodka, four Bud Light beers, two Gatoades and two Pepsis to co-defendant Murphy at or around the sixteenth hole. Prezleski did not see Murphy drink any of those beverages after he paid her. According to the testimony of Vasilikos, she supplied Prezleski with those bottles of vodka because she had extra leftovers from a Bloody Mary event. Vasilikos stated that alcohol, excluding beer, was not sold on the beverage cart, except on September 30, 2018, but that she was unaware that hard liquor was not to be sold on the beverage cart pursuant to the type of license held by Caterers. According to Vasilikos, she only found out after the fatal accident giving rise to this action occurred that liquor was not permitted to be sold from the beverage cart. The certified trial transcripts of Murphy’s golfing foursome submitted by Corp establishes not only that the three small bottles of vodka were sold by Prezleski, a Caterers’ employee, to Murphy, but that Murphy, O’Brien and DiMaria were drinking vodka from a bottle brought onto the golf course by DiMaria. The submitted testimony demonstrates that DiMaria poured vodka drinks for himself, O’Brien and Murphy while they were on the golf course playing. According to DiMaria’s trial testimony, he poured two rounds of vodka drinks from his own bottle of vodka prior to Murphy’s purchase of the three airplane-sized bottles from Prezleski on the bar cart at the 16th hole. Concomitant with the operation of Caterers, Corp owned and ran the golf course; thus, both entities existed and operated on the same property simultaneously. Corp had several co-owners during the relevant time period, including September 30, 2018. According to Jurgens and Stonitsch, Corp transferred full operation and control of the restaurant to Caterers, and Corp had no involvement with Caterers’ liquor license and was unfamiliar with the terms of that license. According to Jurgens, as far as he knew, Caterers was not serving hard liquor on the golf course, and he emphatically stated that “we [Corp] don’t serve alcohol.” Corp established that it and Caterers were separate business entities, but as noted, they each operated alongside each other on the same property. Jurgens acknowledged that there is a sign at or about the first tee stating, “Absolutely No Alcohol or Coolers on Course.” Jurgens testified that the sign was there on September 30, 2018, and that it means “that nobody can bring their own alcohol or coolers onto the golf course; if it’s permitted by the bar, by the permit or the other permit, they can sell it; [w]e do not allow coolers or alcohol, beer, on the golf course without it being sold at the restaurant.” Jurgens admitted that the sign does not include any of the “meanings” about which he testified. So, the sign was either an outright prohibition of alcohol on the golf course owned by Corp, or if crediting the meaning attributed to the sign by Mr. Jurgens, then Corp assisted Caterers in being the sole purveyor of alcohol at the entirety of the premises comprised of the restaurant and the golf course. If the sign means what it states, “Absolutely No Alcohol or Coolers on Course,” then Corp permitted its own posted rule to be violated, which can be considered “some evidence” of negligence that a jury may consider (Haber v. Cross County Hospital, 37 NY2d 888, 889 [1975]; Danbois v. New York Central Railroad Company, 12 NY2d 234, 239 [1963]; Liguori v. Yerger, 197 AD3d 1108, 1109 [2d Dept 2021]), but, standing alone, is not dispositive (see DeKwiatkowski v. Bear, Stearns & Co., 306 F3d 1293 [2d Cir 2002]). Moreover, the fact that Mr. Jurgens testified that he was unfamiliar with the specifics of Caterers’ liquor license raises a question as to the level of supervision expended in enforcing Corp’s own rule. Neither Jurgens nor any of the other owners of the Corp were on site on the date of the subject incident, but Stonitsch, the pro shop attendant, was present on the subject date, and it is undisputed that the pro shop, golf course and Caterers were open simultaneously when golf was being played. Stonitsch testified that he did not recall seeing Murphy in the pro shop on that date. He also acknowledged the existence of the sign prohibiting alcohol on the course, and he testified that if he saw a golfer bring alcohol onto the course, he would address it. No routine practice of inspecting the carts or the golfers’ belongings was performed, but he did state that there were persons who acted as “rangers,” an employee driving around in a golf cart “basically keeping an eye on pace of play, make sure groups are moving along.” A ranger would also be responsible for approaching a golfer if he/she saw a cooler, or a liquor bottle and asking the golfer to remove it. On occasion, Stonitsch acted in the capacity of a “ranger,” but not on September 30, 2018. Jurgens testified that Corp did not train any its employees to identify if someone was intoxicated while playing golf, but “[t]he pro shop were told that if anybody’s drinking or out of control drunk, they would have to leave the golf course;” “[w]e didn’t allow alcohol drunk people” because that was Corp’s policy. Jurgens stated that he recalled that “once or twice” he was present when intoxicated or out-of-control golfers were instructed to leave the course. As to when a pro shop employee might have an opportunity to observe golfers aside from when they check in, it would be at the end of the first nine holes. According to Jurgens, when none of the owners were there, Stonitsch was in charge of the golf course. Based upon Stonitsch’s and Jurgens’ testimony, apparently Corp was not an absentee landlord but maintained a presence and level of control over the premises, including as relates to the procurement of alcohol (cf. Rodriguez v. Memoli, 176 AD2d 102 [1st Dept 1991] [no liability under GOL 11-101 because defendant Kocica established that he never owned the bar, managed the bar, or held the liquor license, but was only the landlord of the building in which the bar was located]). Concerning Corp’s contention that the common law negligence claim should also be dismissed, “[a]s it relates to the consumption of alcohol on premises, the rule is that liability will be imposed only when the defendant is present and then only when he ‘knows that he can and has the opportunity to control the third parties’ conduct and is reasonably aware of the necessity for such control’” (Cavanaugh v. Knights of Columbus Council 4360, 142 AD2d 202, 204, quoting Mangione v. Dimino, 39 AD2d 128, 129 [4th Dept 1972]). The testimony of Mr. Jurgens and Mr. Stonitsch also raise questions as to Corp’s opportunity to control the conduct of Murphy and his golfing companions since Corp was on site, and as to the enforcement of its own rule, whether that be a complete prohibition of alcohol on the course, or a prohibition on alcohol from sources outside that supplied by Caterers. There is an additional question of fact raised as to whether Corp was reasonably aware of the necessity for such control as demonstrated by the conflicting testimony of Prezleski, who testified that she did not observe Murphy to exhibit signs of intoxication when she sold him the three bottles of vodka at the 16th hole, Stonitsch’s denial that he observed Murphy on September 30, 2018, and the trial testimony of Steven Meola, one of Murphy’s foursome, who testified that Murphy was already intoxicated by the 16th hole and later had trouble walking to his car after the 18th hole. Importantly, there is no evidence on this record that Murphy stopped anywhere else for a drink after he left the golf course prior to the accident. For all these reasons, Corp’s motions for summary judgment (Sequences 005, 007, and 008) made in each of these joined actions is denied for failure to establish its prima facie entitlement to summary judgment as a matter of law. In view of the foregoing determination, it is unnecessary to determine whether the papers submitted in opposition are sufficient to raise a triable issue of fact (see Levin v. Khan, 73 AD3d 991 [2d Dept 2010]; Kjono v. Fenning, 69 AD3d 581[2d Dept 2010]; Mondi v. Keahon, 32 AD3d 506 [2d Dept 2006]). Caterers’ Summary Judgment Motions (Sequences 006, 007, 008) As with Corp, it is alleged that Caterers was negligent and violated GOL §11-101/Dram Shop Act. In support of its motion, Caterers submits the pleadings, the lease agreement, and the deposition testimony of Murphy, Jaramillo, Vasilikos, and Prezleski, as well as several written statements from Prezleski by police and Prezleski’s affidavit sworn to on August 2, 2022. Caterers relies exclusively upon the contention that it had no reasonable basis for knowing that Murphy was intoxicated, supported only by Prezleski’s post-depositon affidavit that she did not observe him to be visibly intoxicated at the time that she sold him the airplane-sized bottles of vodka. The Court will not turn a blind eye to the trial transcript of Steven Meola’s testimony submitted by co-defendant Corp in these consolidated actions, which testimony contradicts Prezleski’s testimony as noted herein above. Caterers also apparently ignores the submitted testimony of its owner Jaramillo who clearly stated that Caterers’ liquor license permitted it to sell alcohol at the restaurant but beer only on the beverage cart; therefore, the sale of the vodka to Murphy from the beverage cart on the golf course was a violation of Caterers’ liquor license and an “unlawful selling” of alcohol pursuant to the Dram Shop Act. The testimony of Vasilikos that she gave the alcohol to Prezleski to put on the beverage cart, that alcohol was not sold from the beverage cart except for that one day, September 30, 2018, but that she was unaware that alcohol could not be sold from the cart raises questions of credibility that can only be determined by the trier of fact that has the opportunity to see and hear the witness. Caterers’ reliance upon D’Amico v. Christie (71 NY2d 76 [1978]) for dismissal of the common law negligence claim leveled at it by the plaintiffs is misplaced. In D’Amico, the employees who gathered for a summer picnic had purchased their own food and alcoholic beverages, set up the party, and served themselves, so the Association formed by the employees was not in the position of bartender or even a host dispensing alcohol. Here, Caterers was in precisely the opposite role of the Association in D’Amico. In fact, it was the only entity permitted to procure and dispense alcohol on the entire premises located at 388 River Road, Manorville, New York. Regarding the issue of proximate cause related to the common law negligence claim, proximate cause is almost invariably a factual issue (Turturro v. City of New York, 28 NY3d 469, 483-484 [2016]). Here, there are conflicting factual accounts as to whether Murphy was visibly intoxicated when Caterers’ employee observed him thereby precluding Caterers from establishing that they are entitled to dismissal of this claim. Because of the contradictory accounts as to whether Murphy was visibly intoxicated when Prezleski observed him, plus the fact that the food and beverage manager denied dull knowledge of the parameters of Caterers’ liquor license thereby permitting the illegal sale of alcohol on the golf course, combined with the fact that Murphy apparently did not consume any additional alcohol after he left the golf course prior to the accident, there are questions of fact and credibility raised that are the same and similar to those raised in connection with Corp’s motions for summary judgment. Like Corp’s motions, Caterers’ summary judgment motions are denied for failure to establish prima facie entitlement to summary judgment dismissal of the Dram Shop Act and common law negligence claims. The Lane and McMorris Motions for Summary Judgment (Sequences 007, 008, 009, and 009) These plaintiffs seek summary judgment on liability against defendants Thomas Murphy, Corp and Caterers in the three joined actions, on the same grounds. Defendant Thomas Murphy The plaintiffs assert that there is no dispute that Murphy was negligent as a matter of law when he operated his motor vehicle while intoxicated, crossed over a solid white line, drove into a pack of Boy Scouts, killing infant McMorris and seriously injuring Kevin Lane, Thomas Lane, and Denis Lane. Plaintiffs base their argument on the doctrine of collateral estoppel. Plaintiffs also seek dismissal of all affirmative defenses alleging comparative negligence. A plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case (Rodriguez v. City of New York, 31 NY3d 312 [2018]). The fact of Murphy’s judgment of conviction after trial and sentencing for Aggravated Vehicular Homicide, Manslaughter Second Degree, Assault Second Degree, Vehicular Assault Second degree (all felonies), Assault Third Degree, and Reckless Driving (misdemeanors) is undisputed (People v. Evans, 72 AD2d 751 [2d Dept 1979] [there is no judgment until sentence has been imposed]). “The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v. New York Telephone Company, 62 NY2d 494, 500 [1984]; Clifford v. County of Rockland, 140 AD3d 1108, 1109 [2d Dept 2016]). “Collateral estoppel comes into play when four conditions are fulfilled: ‘(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits’” (Conason v. Megan Holding, LLC, 25 NY3d 1, 17 [2015] [internal quotation marks and citations omitted]). “The party seeking to invoke collateral estoppel has the burden to show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate” (Matter of Dunn, 24 NY3d 699, 704 [2015]). “Where a criminal conviction is based upon facts identical to those in issue in a related civil action, the plaintiff in the civil action can successfully invoke the doctrine of collateral estoppel to bar the convicted defendant from relitigating the issue of his liability” (McDonald v. McDonald, 193 AD2d 590, 590 [2d Dept 1993]). “All that is required to give rise to the bar of collateral estoppel in the civil action is that the plaintiff demonstrate that there is identity of the issues and that the defendant had a full and fair opportunity to litigate the issues in the criminal action” (Id. at 591; see also Uy v. Hussein, 186 AD3d 1566 [2d Dept 2020]; Blaich v. Van Herwynen, 37 AD3d 387 [2d Dept 2007]; Read v. Sacco, 49 AD2d 471 [2d Dept 1975]). Here, the allegations of negligence asserted against Murphy by the plaintiffs in this civil proceeding are identical to those that were in issue in the criminal proceeding, namely that Murphy operated a motor vehicle while intoxicated, crossed over the solid white fog line painted on the side of the road, and drove into the Boy Scout troop, killing the infant McMorris and seriously injuring the Lane plaintiffs. Murphy was represented by counsel during the entirety of the criminal proceeding, including during trial, and he, through his counsel, had a full and fair opportunity to cross-examine all of the witnesses presented by the prosecution, including the Chief Toxicologist for the Office of the Suffolk County Medical Examiner, Michael Lehrer, PhD, BCLD, who performed an extrapolation calculation that, based upon Murphy’s blood alcohol content (BAC) of .13 % measured three hours and forty-eight minutes after the accident, Murphy had a BAC of .17% at the time he purchased the vodka bottles from Prezleski and a BAC of .18 percent at the time of the accident. Based upon the doctrine of collateral estoppel, the plaintiffs have met their prima facie burden establishing entitlement to summary judgment on the issue of liability against Murphy. Plaintiffs have also demonstrated their entitlement to summary judgment dismissal of all affirmative defenses asserted by defendant Murphy. The plaintiffs’ summary judgment motions are unopposed by defendant Thomas Murphy; therefore, he has failed to raise a triable issue of fact. Accordingly, those branches of the plaintiffs’ summary judgment motions on liability seeking a determination that Murphy was negligent as a matter of law are granted. Defendants Corp and Caterers As discussed herein in relation to Corp’s and Caterers’ summary judgment motions, the issues of fact and credibility raised as to whether Murphy appeared visibly intoxicated when he purchased the vodka bottles warranted denial of those motions for failure to carry their prima facie burdens. The mere fact that those defendants did not carry their burdens does not mandate granting the plaintiffs’ motions for summary judgment against Corp and Caterers.2 Plaintiff McMorris submits, inter alia, all of the same deposition testimony submitted by the defendants upon their motions, plus the same affidavit of Prezleski stating that when she observed Murphy on the golf course he did not appear to be intoxicated, the certified trial transcripts of Steven Meola, Raymond O’Brien, and Christopher DiMaria, the trial transcript and affidavit of Dr. Michael Lehrer, video clips of the golf game taken from Murphy’s phone and authenticated through the testimony of Murphy’s friends at his criminal trial, and police reports concerning field sobriety tests and booking data.3 The Lane plaintiffs rely upon the same evidence submitted by McMorris in connection with Lane’s index number (NYSCEF Doc. Nos. 171-198). The Court notes that defendant Corp also submitted the sworn and certified trial transcripts of Meola and DiMaria in support of its motion; therefore, the defendants cannot be heard to complain about submission of some of the same transcripts on plaintiffs’ motions. In any event, even considering all of the evidence submitted by the plaintiffs in their moving papers against Corp and Caterers, the questions of fact and credibility determined by this Court to have been raised in connection with the defendants’ motions not only remain but deepen. On the one hand, there is the evidence from Dr. Lehrer as to Murphy’s elevated BAC hours after the accident that, in and of itself, does not provide a sound basis for drawing inferences about Murphy’s appearance or demeanor (Sullivan, supra at 1020), but there is the police report apparently prepared by the responding officer who personally observed Murphy to exhibit the odor of an alcoholic beverage on his breath, slurred speech, bloodshot and glassy eyes and unsteadiness on his feet shortly after the accident. As previously noted, Steve Meola testified that he was of the opinion that Murphy was intoxicated when Murphy purchased the three bottles of vodka from the beverage cart and that he was intoxicated when he got into his car and drove out of the golf course parking lot, refusing Meola’s offer to drive. On the other hand, DiMaria testified that based upon his observation of Murphy when they left the golf course that day, Murphy “was fine,” such that DiMaria was not concerned about him driving at that point. Prezleski stated in her affidavit sworn to on August 2, 2022 that she did not observe Murphy to be visibly intoxicated when she encountered him twice on the golf course on September 30, 2018. O’Brien also testified at the trial that he thought “[Murphy] was fine all along.” O’Brien also testified that he and Meola had a discussion that Meola thought that Meola should drive Murphy’s car, but that O’Brien told Meola that he thought Murphy was “fine.” Based upon knowing Murphy for decades, O’Brien was of the opinion that Murphy was neither impaired or intoxicated. According to O’Brien’s testimony, “[k]nowing Mr. Murphy as long as I did, I wasn’t concerned.” O’Brien also testified that Murphy operated the golf cart on September 30, 2018 without any difficulty up through and including the 18th hole. The video clips themselves submitted by the plaintiffs in support of the instant motions also raise questions of fact as to whether Murphy appeared visibly intoxicated on September 30, 2018 while at the golf course. Two of the clips contain Murphy speaking to his friends. Only one of the clips is of any appreciable length while the other four are extremely brief. The Court has reviewed them and observed that although Murphy can be heard speaking loudly to his friends, in its estimation, the Court was not able to detect slurred speech. When DiMaria was asked about the video clips at the criminal trial, he testified that Murphy’s voice was loud but clear, and “that’s how he usually speaks to a group when he is abusing them.” Meola testified in contravention, characterizing Murphy’s voice as “a little bit of slurred words;” “little slur;” “slurring.” O’Brien testified that he “could hear a very slight slur on him,” and “I’ve heard him talk when he is inebriated, and that’s not even close.” Accordingly, the character of Murphy’s voice on the video clips is open to interpretation that can only be resolved by the trier of fact. In addition to all of the factual issues identified by this Court it is readily apparent that the credibility of the witnesses is critical to a determination as to whether Murphy appeared visibly intoxicated at the golf course. The Court cannot make credibility determinations in the context of summary judgment motions; therefore, these branches of the plaintiffs’ motions seeking summary judgment against Corp and Caterers must be denied in all respects for failure to establish prima facie entitlement to that relief. The foregoing constitutes the Decision and Order of this Court. FINAL DISPOSITION [ ] NON-FINAL DISPOSITION [ X ] Dated: June 28, 2023
