| Sullivan v Mulinos of Westchester, Inc. |
| 2010 NY Slip Op 04360 [73 AD3d 1018] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Cathy Sullivan, Individually and as Executor of John Sullivan,Deceased, Respondent, v Mulinos of Westchester, Inc., et al., Appellants, et al.,Defendants. |
—[*1] Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains, N.Y. (William H. Bave, Jr., ofcounsel), for appellants Self Service, Inc., Trotters Tavern, and Anthony Goncalves. Rubert & Gross, P.C., New York, N.Y. (Soledad Rubert of counsel), forrespondent.
In an action, inter alia, to recover damages pursuant to General Obligations Law §11-101, the defendants Mulinos of Westchester, Inc., Louis Gigante, Sr., Louis Gigante, Jr.,Jimmy Cavagna, Louis Pipolo, and Ha Rugova appeal from so much of an order of the SupremeCourt, Rockland County (Weiner, J.), entered September 24, 2009, as denied those branches oftheir motion which were for summary judgment dismissing so much of the complaint as soughtto recover damages for alleged violations of Alcoholic Beverage Control Law § 65 andGeneral Obligations Law § 11-101 insofar as asserted against them, and the defendantsSelf Service, Inc., Trotters Tavern, and Anthony Goncalves separately appeal from so much ofthe same order as denied their motion for summary judgment dismissing so much of thecomplaint as sought to recover damages for alleged violations of General Obligations Law§ 11-101 insofar as asserted against them.
Ordered that the order is modified, on the law, (1) by deleting the provisions thereof denyingthose branches of the appellants' respective motions which were for summary judgmentdismissing so much of the complaint as sought to recover damages, pursuant to GeneralObligations Law § 11-101, for loss of services, loss of consortium, and on behalf of theEstate of John Sullivan, and substituting therefor provisions granting those branches of theappellants' respective motions, (2) by deleting the provision thereof denying that branch of themotion of the defendants Mulinos of Westchester, Inc., Louis Gigante, Sr., Louis Gigante, Jr.,Jimmy Cavagna, Louis Pipolo, and Ha Rugova which was for summary judgment dismissing somuch of the complaint as sought to recover damages for alleged violations of AlcoholicBeverage Control Law § 65 insofar as asserted against them, and substituting therefor aprovision granting that branch of the motion; as so modified, the order is affirmed insofar asappealed from, with one bill of costs to the plaintiff payable by the appellants appearingseparately and filing separate briefs, and, upon searching the record, summary judgment isawarded to the defendants Self Service, Inc., Trotters Tavern, [*2]and Anthony Goncalves dismissing so much of the complaint assought to recover damages for alleged violations of Alcoholic Beverage Control Law § 65insofar as asserted against them.
On February 11, 2005, at approximately 1:45 a.m., while traveling over the Tappan ZeeBridge, the plaintiff's decedent, John Sullivan (hereinafter Sullivan), lost control of the vehiclehe was operating and was killed when it struck a lamp pole and went over the guide rail into theHudson River. Sullivan, who allegedly was intoxicated at the time of his death, had patronizedMulinos Restaurant and Trotters Tavern prior to the accident. The plaintiff, Cathy Sullivan,Sullivan's widow, on behalf of herself, their children, and Sullivan's estate, commenced thisaction against, among others, the owners and/or operators of Mulinos Restaurant and the ownersand/or operators of Trotters Tavern, seeking to recover damages for common-law negligence andfor violations of Alcoholic Beverage Control Law § 65 and General Obligations Law§ 11-101, commonly known as the Dram Shop Act. The plaintiff alleges actual damages,loss of support, loss of services, and loss of consortium, and sought exemplary damages.
The defendants Self Service, Inc., Trotters Tavern, and Anthony Goncalves (hereinaftercollectively the Trotters defendants), moved for summary judgment dismissing so much of thecomplaint as sought to recover damages for alleged violations of General Obligations Law§ 11-101 insofar as asserted against them. The defendants Mulinos of Westchester, Inc.,Louis Gigante, Sr., Louis Gigante, Jr., Jimmy Cavagna, Louis Pipolo, and Ha Rugova(hereinafter collectively the Mulinos defendants), separately moved, inter alia, for summaryjudgment dismissing the complaint insofar as asserted against them. The Supreme Court grantedthose branches of the Mulinos defendants' motion which were for summary judgment dismissingthe causes of action to recover damages for common-law negligence insofar as asserted againstthem. However, the Supreme Court denied the remaining branches of their motion and alsodenied the Trotters defendants' motion, finding that triable issues of fact were raised as towhether either set of movants "served alcoholic beverages to an intoxicated person." We modify.
In order to establish liability for violation of the Dram Shop Act, the plaintiff is required toprove that the defendants sold alcohol to Sullivan while he was "visibly intoxicated" (seeAlcoholic Beverage Control Law § 65 [2]; General Obligations Law § 11-101;Adamy v Ziriakus, 92 NY2d 396 [1998]). In support of their motion, the Trottersdefendants offered deposition testimony which, if unrebutted, was sufficient to establish thatSullivan was not served alcohol at Trotters while visibly intoxicated. In opposition, however, theplaintiff raised triable issues of fact. Contrary to the Trotters defendants' contentions, theaffirmation of the Rockland County Medical Examiner, which we find admissible under thecircumstances of this case (seeWestchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014 [2008]), wassufficient to raise a triable issue of fact as to whether Sullivan indeed was served alcohol atTrotters Tavern. In addition, although proof of a high blood alcohol content does not, withoutmore, provide a sound basis for drawing inferences about a person's appearance or demeanor(see Romano v Stanley, 90 NY2d 444 [1997]), here, the Medical Examiner's opinion thatSullivan was visibly intoxicated while served alcohol was supported by deposition testimony.Specifically, the person whom Sullivan met at Mulinos Restaurant and later accompanied toTrotters Tavern testified at his deposition, inter alia, that just five minutes before arriving atTrotters Tavern, Sullivan's speech was heavily slurred, he was argumentative, he stumbledbackwards attempting to navigate stairs, and his ability to walk a straight line was significantlyimpaired (see Adamy v Ziriakus, 92 NY2d 396 [1998]; LaCatena v M.C. & E.D. Beck, Inc.,35 AD3d 388 [2006]).
With regard to that branch of the Mulinos defendants' motion which was for summaryjudgment dismissing the causes of action predicated upon the alleged violation of the Dram ShopAct, the evidence submitted by the plaintiff in opposition to the establishment, prima facie, of theMulinos defendants' entitlement to judgment as a matter of law, was sufficient to raise a triableissue of fact as to whether "some reasonable or practical connection" existed between the sale ofalcohol at Mulinos Restaurant and the resulting damages (McArdle v 123 Jackpot, Inc., 51 AD3d 743, 746 [2008] [internalquotation marks omitted]; Catania v 124 In-To-Go, Corp., 287 AD2d 476, 477 [2001];Adamy v Ziriakus, 231 AD2d 80, 88 [1997], affd 92 NY2d 396; Church vBurdick, 227 AD2d 817, 818 [1996]; Johnson v Plotkin, 172 AD2d 88, 92 [1991]).
The plaintiff correctly concedes that Alcoholic Beverage Control Law § 65 does notcreate an independent statutory cause of action (see Carr v Kaifler, 195 AD2d 584, 585[1993]). The plaintiff also correctly concedes that General Obligations Law § 11-101 doesnot permit the recovery of damages for [*3]loss of services andloss of consortium (see Valicenti v Valenze, 68 NY2d 826, 829 [1986]; Dunphy v J& I Sports Enters., 297 AD2d 23 [2002]; Bongiorno v D.I.G.I., Inc., 138 AD2d 120[1988]), and that there can be no recovery by Sullivan's estate based on the alleged unlawful saleof alcoholic beverages (see Sheehy v Big Flats Community Day, 73 NY2d 629 [1989];O'Gara v Alacci, 67 AD3d 54[2009]). Accordingly, to the extent that the plaintiff seeks to recover damages for allegedviolation of Alcoholic Beverage Control Law § 65 and, pursuant to General ObligationsLaw § 11-101, for loss of services, loss of consortium, and on behalf of Sullivan's estate,the Supreme Court should have awarded summary judgment dismissing those portions of thecomplaint insofar as asserted against the Mulinos defendants. Similarly, the Supreme Courtshould have granted that branch of the Trotters defendants' motion which was for summaryjudgment dismissing so much of the complaint as sought to recover damages pursuant to GeneralObligations Law § 11-101 for loss of services, loss of consortium, and on behalf ofSullivan's estate. Inasmuch as the claims asserted against the Trotters defendants are identical tothose asserted against the Mulinos defendants, upon searching the record, we award summaryjudgment dismissing so much of the complaint as sought to recover damages for allegedviolations of Alcoholic Beverage Control Law § 65 insofar as asserted against them(see CPLR 3212 [b]). The remaining claims for damages, however, are compensable(see Dunphy v J & I Sports Enters., 297 AD2d at 25).
The Mulinos defendants' remaining contention is not properly before this Court. Dillon, J.P.,Balkin, Lott and Sgroi, JJ., concur.