| Kaufman v Quickway, Inc. |
| 2009 NY Slip Op 05727 [64 AD3d 978] |
| July 9, 2009 |
| Appellate Division, Third Department |
| Joseph E. Kaufman, Individually and as Administrator of the Estateof Joseph D. Kaufman, Deceased, et al., Respondents, v Quickway, Inc., et al.,Appellants. |
—[*1] Law Office of Duane C. Felton, New York City (Dayo Owotomo of counsel), forrespondents.
Rose, J. Appeal from an order of the Supreme Court (Coccoma, J.), entered October 9, 2008in Delaware County, which denied defendants' motion for summary judgment dismissing thecomplaint.
Soon after purchasing a 12-pack of beer at a convenience store operated by defendants, EarlBeers drove his vehicle at high speed, swerved into oncoming traffic and struck a vehicle beingdriven by plaintiffs' son, killing both himself and the son. The collision occurred at 4:03 p.m. Acash register receipt found in Beers' car showed that he had purchased the beer at 3:56:49 p.m.,less than seven minutes before the collision. Plaintiffs later commenced this action alleging thatdefendants violated General Obligations Law § 11-101 (1) by selling alcohol to Beerswhen he was visibly intoxicated. Following disclosure, defendants moved for summary judgmentdismissing the complaint. Supreme Court denied the motion, finding that certain statementsabout the sale allegedly made by the store clerk, Bonney Edwards, raised questions of fact.Defendants now appeal, and we reverse.
A violation of General Obligations Law § 11-101 occurs when a defendant sellsalcohol to a person who is visibly intoxicated at the time (see Alcoholic BeverageControl Law § 65 [2]; [*2]Adamy v Ziriakus, 92NY2d 396, 400-401 [1998]). Here, defendants met their initial burden of establishing theirentitlement to summary judgment. They submitted Edwards' sworn deposition testimony that hercustomer had not appeared intoxicated at the time of the sale and the affidavit of a toxicologistwho opined that, based upon the alcohol content of .037% in a sample of Beers' blood taken atthe scene of the accident, he would not have shown signs of intoxication at the time of the sale.This evidence shifted the burden to plaintiffs to raise a question of fact as to whether Beers wasvisibly intoxicated when he purchased alcohol from defendants (see Csizmadia v Town ofWebb, 289 AD2d 854, 856 [2001]; Sorensen v Denny Nash, Inc., 249 AD2d 745,747 [1998]; Gonyea v Folger, 133 AD2d 964, 965 [1987]).
In opposition to defendants' motion, plaintiffs relied on a supporting deposition prepared bya police officer and purportedly signed by Edwards "under penalty of perjury" (see CPL100.20), but not sworn or notarized. They also relied on the police officer's testimony as to theoral statements allegedly made by Edwards to him when he prepared the supporting deposition.Those statements include her description of the customer to whom she sold a 12-pack of beer onthe afternoon of the collision as well as her account that the customer had the odor of beer on hisbreath and she had difficulty understanding what he was saying. During her subsequentexamination before trial, however, Edwards strongly denied making the statements upon whichplaintiffs now rely to establish Beers' appearance of intoxication. She averred instead that shehad not smelled alcohol on the customer to whom she sold the beer, she had no troubleunderstanding him and denied knowing whether the customer was intoxicated. Notably, Edwardsasserted that the supporting deposition is not the actual document that she signed and does notaccurately reflect the statement that she gave.
Since Edwards' out-of-court statements were offered by plaintiffs for the truth of theircontent, they constitute hearsay (see People v Romero, 78 NY2d 355, 361 [1991];Prince, Richardson on Evidence § 8-101 [Farrell 11th ed]). As such, they are notadmissible unless they satisfy one of the exceptions to the hearsay rule (see Nucci vProper, 95 NY2d 597, 602 [2001]; People v Settles, 46 NY2d 154, 166-167 [1978]).Contrary to plaintiffs' suggestion at oral argument, the statements are not admissions attributableto a party, as there is no evidence that Edwards was authorized to speak on defendants' behalf(see Loschiavo v Port Auth. of N.Y. & N. J., 58 NY2d 1040, 1041 [1983]; Tkach vGolub Corp., 265 AD2d 632, 634 [1999]). Nor does the supporting deposition fall within theexception for a prior inconsistent written statement where the declarant is available to testify andthere is no reason to believe that the declarant's words were incorrectly reported (seeLetendre v Hartford Acc. & Indem. Co., 21 NY2d 518, 524 [1968]; Prince, Richardson onEvidence § 8-104 [Farrell 11th ed, 2008 Supp]).[FN*][*3]
"While we recognize that a prior [inadmissible,]inconsistent hearsay statement may, under certain circumstances, raise an issue of fact sufficientto defeat summary judgment, those circumstances are not present here" (Edmonds vQuellman, 277 AD2d 579, 580-581 [2000] [citation omitted]). As inadmissible hearsay,Edwards' statements could be considered in opposition to defendants' motion for summaryjudgment only if there were an acceptable excuse for plaintiffs' failure to present the evidence inadmissible form (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980];Meizinger v Akin, 192 AD2d 1011, 1014 [1993], lv denied 82 NY2d 661[1993]) or other competent evidence in the record supporting their claim (see Saint James' Episcopal Church vF.O.C.U.S. Found., 47 AD3d 1058, 1060 [2008]; Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302 [2007];Stankowski v Kim, 286 AD2d 282, 283 [2001], appeal dismissed 97 NY2d 677[2001]; Guzman v L.M.P. Realty Corp., 262 AD2d 99, 100 [1999]; Egleston vKalamarides, 89 AD2d 777, 778 [1982], mod on other grounds 58 NY2d 682[1982]). Here, plaintiffs could not present the relevant statements in admissible form becauseEdwards repudiated them. Repudiation is not an acceptable excuse, however, because plaintiffshad the opportunity to, and did, obtain Edwards' sworn testimony describing the sale at herexamination before trial. Thus, this is not a case where the witness was unavailable or unwillingto give a sworn statement as to the relevant facts (cf. Egleston v Kalamarides, 58 NY2d682, 684 [1982]; Gizzi v Hall, 300 AD2d 879, 881 [2002]; Maldonado v TownsendAve. Enters., Ltd. Partnership, 294 AD2d 207, 208 [2002]).
Nor is there any other admissible evidence tending to support the contention that Beersappeared intoxicated in the convenience store at the time of the sale. Apparently, no one elseobserved Beers at the store and plaintiffs presented no expert evidence that his blood alcoholcontent would have caused him to appear intoxicated at the time of the sale (cf. Adamy vZiriakus, 92 NY2d at 402). Accordingly, there was no valid basis for Supreme Court toconsider this hearsay evidence in deciding defendant's motion for summary judgment (seeMeizinger v Akin, 192 AD2d at 1014; Gonyea v Folger, 133 AD2d at 966), anddefendants' motion should have been granted.
Cardona, P.J., Spain, Kane and Garry, JJ., concur. Ordered that the order is reversed, on thelaw, with costs, and motion granted.
Footnote *: The Court of Appeals hasexplained that the Letendre exception does not apply merely because the declarant isavailable to testify and be cross-examined; rather, all relevant factors must indicate that thehearsay statement is reliable (see Nucci v Proper, 95 NY2d at 603). Here, as inNucci, but not in Letendre, the reliability of the unsworn statements recorded inthe supporting deposition and reported by the police officer is denied by Edwards' sworntestimony (see id. at 604). While there may be more factors indicating the reliability ofthe statements attributed to Edwards than were present in Nucci, Edwards' statements donot meet the requirements of the Letendre exception because she has seriously disputedtheir utterance and content, expressly asserting that her words were "incorrectly reported"(Letendre v Hartford Acc. & Indem. Co., 21 NY2d at 524; see Nucci v Proper,95 NY2d at 604; Prince, Richardson on Evidence§ 8-104 [Farrell 11th ed, 2008 Supp, at 252]).