(concurring in part and dissenting in part). While we concur with the majority’s disposition of plaintiff’s first two causes of action, we would affirm Supreme Court’s holding with respect to the third cause of action, that based upon the Dram Shop Act (see, General Obligations Law § 11-101). In our view, the Court of Appeals holding in D’Amico v Christie (71 NY2d 76) — that this statute does not apply unless there is a commercial sale of alcohol (see, supra, at 84) — does not bar plaintiff’s recovery here, where defendant Spec, Inc. *814supplied defendant John Ryan with alcoholic drinks as part of the consideration for the latter’s services.
The factual posture of this case is markedly different from that confronted in D’Amico v Christie (supra). There the entity providing the alcohol, an employee organization conducting a social function for its members, did not profit, directly or indirectly, from doing so. Indeed, the Court of Appeals explicitly noted that fact in the course of its decision therein (see, supra, at 84). By contrast, in the matter at hand it is reasonably inferable that Spec hired bands, and hence Ryan (and in connection therewith, furnished him with alcoholic beverages), with the hope that increased business, and hence pecuniary gain, would result. It strikes us that supplying drinks under these circumstances comes within the reach of the statute, for Ryan’s engagement is part of a commercial transaction in which defendant Douglas Layaw’s enterprise, a licensed purveyor of alcoholic beverages, exchanges such beverages for something of value, with the expectation of profiting therefrom (cf., Gabrielle v Craft, 75 AD2d 939, 940; see also, Alcoholic Beverage Control Law § 3 [28]). To the extent that Carr v Kaifler (195 AD2d 584) and Custen v Salty Dog (170 AD2d 572) suggest otherwise, we respectfully disagree.
Nor is summary judgment warranted on any of the other grounds advanced by Spec and Layaw, for the record presents triable questions of fact with respect to Ryan’s intoxication and his procurement of alcoholic beverages from bar employees (see, Ryan v Big Z Corp., 210 AD2d 649, 651). Accordingly, we would affirm Supreme Court’s denial of the motion by Spec and Layaw for summary judgment on the third cause of action.
Peters, J., concurs. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied the motion for summary judgment dismissing the second and third causes of action; motion regarding said causes of action granted, summary judgment awarded to defendants Spec, Inc. and Douglas Layaw, and complaint dismissed against them; and, as so modified, affirmed.