| McArdle v 123 Jackpot, Inc. |
| 2008 NY Slip Op 04481 [51 AD3d 743] |
| May 13, 2008 |
| Appellate Division, Second Department |
| Philip McArdle et al., Appellants, v 123 Jackpot, Inc., etal., Respondents, et al., Defendants. |
—[*1] Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston, N.Y. (Eric M. Kurtz of counsel),for respondents.
In an action, inter alia, to recover damages pursuant to General Obligations Law§§ 11-100 and 11-101, the plaintiffs appeal, as limited by their brief, from (1) somuch of an order of the Supreme Court, Putnam County (O'Rourke, J.), dated October 16, 2006,as granted that branch of the motion of the defendants 123 Jackpot, Inc., John Kisa, also knownas Can John Kisa, Erin Bal, Ray Durmazoglu, and Richard Cebel as Partners which was forsummary judgment dismissing the first cause of action insofar as asserted against them, and (2)so much of an order of the same court dated January 18, 2007, as, in effect, upon reargument,adhered to the original determination.
Ordered that the appeal from the order dated October 16, 2006, is dismissed, without costs ordisbursements, as the portion of the order appealed from was superseded by the order datedJanuary 18, 2007, made upon reargument; and it is further,
Ordered that the order dated January 18, 2007, is modified, on the law, by deleting theprovision thereof, in effect, upon reargument, adhering to the original determination granting thatbranch of the motion of the defendants 123 Jackpot, Inc., John Kisa, also known as Can JohnKisa, Erin Bal, Ray Durmazoglu, and Richard Cebel as Partners which was for summaryjudgment dismissing so much of the first cause of action as sought to recover medical expensesand funeral expenses incurred on behalf of the infant decedent insofar as asserted against them,and substituting therefor a provision, upon reargument, vacating that portion of the order datedOctober 16, 2006, which granted that branch of the motion of the defendants 123 Jackpot, Inc.,John Kisa, also known as Can John [*2]Kisa, Erin Bal, RayDurmazoglu, and Richard Cebel as Partners which was for summary judgment dismissing somuch of the first cause of action as sought to recover medical expenses and funeral expensesincurred on behalf of the infant decedent insofar as asserted against them, and denying thatbranch of the motion; as so modified, the order dated January 18, 2007, is affirmed insofar asappealed from, without costs or disbursements.
On January 5, 2002, at approximately 4:00 a.m., 16-year-old Andrew McArdle allegedly lostcontrol of the car he was driving and was killed when it struck a tree. At that time, the youthallegedly was intoxicated from consuming beer, which he had purchased at a convenience storeowned and/or operated by the defendants 123 Jackpot, Inc., John Kisa, also known as Can JohnKisa, Erin Bal, Ray Durmazoglu, and Richard Cebel as Partners (hereinafter the respondents).Following the accident, Andrew's parents, Philip McArdle and Eileen McArdle, commenced theinstant action. The complaint, as amplified by the bill of particulars, alleges as a first cause ofaction a violation of the Dram Shop Act (see General Obligations Law §§11-100, 11-101) and Alcoholic Beverage Control Law § 65, and seeks damages for loss offuture support and loss of services as well as medical expenses and funeral expenses incurred onbehalf of the infant decedent. The second and third causes of action sound in conscious pain andsuffering and wrongful death.
Pursuant to the trial court's directive, the plaintiffs filed a note of issue and certificate ofreadiness, which indicated that discovery was to continue while the matter was on the trialcalendar.
At the conclusion of all depositions, the respondents moved for summary judgmentdismissing the complaint insofar as asserted against them. The plaintiffs opposed the motion. Byorder dated October 16, 2006, the Supreme Court granted the motion to the extent of awardingsummary judgment dismissing the first and second causes of action insofar as asserted against therespondents.
Thereafter, the respondents moved for leave to reargue the prior motion on the ground thatthe court overlooked that branch of that motion which was for summary judgment dismissing thethird cause of action sounding in wrongful death. The plaintiffs cross-moved for leave to rearguethat branch of the motion which was to dismiss the first cause of action.
By order dated December 21, 2006, the court granted the respondents' motion for leave toreargue and, upon reargument, dismissed the third cause of action sounding in wrongful deathinsofar as asserted against them. By order dated January 18, 2007, the court, in effect, granted theplaintiffs' cross motion and, upon reargument, adhered to its original determination grantingsummary judgment to the respondents dismissing the first cause of action insofar as assertedagainst them.
Contrary to the plaintiffs' contention, under the circumstances of this case, the respondentsdemonstrated "good cause" for their delay in filing their motion for summary judgment, since thenote of issue was filed while there was significant discovery outstanding (see CPLR 3212[a]; Brill v City of New York, 2NY3d 648, 652 [2004]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129[2000]; Sclafani v Washington Mut.,36 AD3d 682 [2007]).
The Supreme Court properly granted summary judgment on the loss of services claim sincethe Dram Shop Act does not provide for damages resulting from the loss of services (seeValicenti v Valenze, 68 NY2d 826, 829 [1986]; Ray v Galloway's Cafe, 221 AD2d612 [1995]; McCauley v Carmel Lanes, 178 AD2d 835 [1991]).[*3]
Likewise, summary judgment was properly granted to therespondents on the claim for loss of future support where, in response to the prima facie showingby the respondents, the plaintiffs failed to raise a triable issue of fact as to whether the infantdecedent had a legal duty to support his parents or had undertaken an obligation to do sonotwithstanding the absence of such a duty (see McNeill v Rugby Joe's, 272 AD2d 384[2000]; Gigliotti v Byrne Dairy, 249 AD2d 973 [1998]; Marsico v Southland Corp.,148 AD2d 503 [1989]; cf. Raynor v C.G.C. Grocery Corp., 159 AD2d 463 [1990];Dunphy v J & I Sports Enters., 297 AD2d 23 [2002]).
The Supreme Court erred, however, in dismissing the claims for medical expenses incurredby the plaintiffs on behalf of the infant decedent. "In New York, a parent's right to recover formedical expenses incurred by a child is grounded upon the parent's obligation to support a minorchild" (Dunphy v J & I Sports Enters., 297 AD2d 23, 26 [2002]; see Clough v Boardof Educ. of Spencerport Cent. School Dist., 56 AD2d 233 [1977]; Cuming v BrooklynCity R.R. Co., 109 NY 95, 97 [1888]; see also Holodook v Spencer, 36 NY2d 35,44-45 [1974]; Reickert v Misciagna, 183 AD2d 151, 156 [1992]; Family Ct Act §413). Similarly, the plaintiffs are entitled to seek recovery for funeral expenses (see Raynor vC.G.C. Grocery Corp., 159 AD2d 463 [1990]; Scheu v High-Forest Corp., 129 AD2d366 [1987]; Bongiorno v D.I.G.I., Inc., 138 AD2d 120, 125 [1988]).
Inasmuch as the respondents failed to tender evidence sufficient to demonstrate the absenceof any material issues of fact, they did not satisfy their prima facie burden entitling them tosummary judgment dismissing the claims for medical expenses and funeral expenses (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York,49 NY2d 557 [1980]). Moreover, the evidence submitted by the plaintiffs in opposition tothe respondents' motion was sufficient to raise a triable issue of fact as whether "some reasonableor practical connection" exists between the sale of alcohol and the resulting injuries (McNeillv Rugby Joe's, 298 AD2d 369, 370 [2002]; see Keeley v Tracy, 301 AD2d 501[2003]; Johnson v Plotkin, 172 AD2d 88 [1991]). Skelos, J.P., Covello, Eng andLeventhal, JJ., concur.