
    Leon Ray, Respondent, v Michael Barnhart, Doing Business as Bert & Ernie’s Tavern, Appellant, et al., Defendant.
   —Kane, J.

Appeal from an order of the Supreme Court at Special Term (Zeller, J.), entered March 18, 1985 in Otsego County, which, inter alia, denied defendant Michael Barn-hart’s motion for partial summary judgment.

Defendant Michael Barnhart owns and operates Bert & Ernie’s Tavern in the Village of Unadilla, Otsego County. Plaintiff was injured during the early morning hours of April 1, 1984 in the tavern when he was allegedly assaulted by a fellow patron, defendant Danny Neish. The instant amended complaint asserts three causes of action against Barnhart. The first cause of action alleges a violation of Alcoholic Beverage Control Law § 65 (2) in that Neish was illegally served intoxicating beverages. Plaintiff claims that such violation resulted in the assault on him by Neish. The second cause of action alleges a violation of Alcoholic Beverage Control Law § 106 (6) in that the premises were allowed to become disorderly. The third cause of action alleges common-law negligence.

After discovery, Barnhart moved, inter alia, for summary judgment dismissing the first cause of action and dismissing "the dramshop aspects of the second cause of action”. Specifically, Barnhart asserted that there was no evidence that Neish was intoxicated when he was served an alcoholic beverage (see, Alcoholic Beverage Control Law § 65; General Obligations Law § 11-101). Special Term denied the motion, finding the existence of triable issues of fact. This appeal ensued.

On appeal, Barnhart’s sole argument is centered upon his assertion that plaintiff has failed to "prove * * * the unlawful sale or furnishing of liquor”. While the record contains evidence indicating that Neish was not intoxicated at the time in question, the record also contains evidence from which the jury could conclude otherwise. This being the case, the motion was properly denied and the order should be affirmed (see, Siegel, NY Prac § 278, at 333-335).

Order affirmed, without costs. Mahoney, P. J., Kane, Weiss, Mikoll and Levine, JJ., concur.  