| Samela v Post Rd. Entertainment Corp. |
| 2012 NY Slip Op 07979 [100 AD3d 857] |
| November 21, 2012 |
| Appellate Division, Second Department |
| Alicia A. Samela, Respondent, v Post Road EntertainmentCorp. et al., Appellants. |
—[*1] Clark, Gagliardi & Miller, P.C., White Plains, N.Y. (Henry G. Miller, Lawrence T. D'Aloise,Jr., and Angela Morcone Giannini of counsel), for respondent.
In an action pursuant to General Obligations Law §§ 11-100 and 11-101, interalia, to recover damages for loss of support, the defendants appeal from an order of the SupremeCourt, Westchester County (Lefkowitz, J.), entered January 24, 2012, which denied their motionfor summary judgment dismissing the complaint in its entirety or, in the alternative, for summaryjudgment dismissing so much of the complaint as seeks to recover damages for loss of futuresupport and services and for exemplary damages.
Ordered that the order is affirmed, with costs.
Over the course of several hours on the evening of August 6, 2007, and the early morning ofAugust 7, the plaintiff's 19-year-old son (hereinafter the decedent) consumed alcohol served tohim at a bar owned by the defendants. While driving home from the bar in the early morninghours of August 7, 2007, the decedent was injured in an automobile accident, and later died ofhis injuries. The plaintiff commenced this action against the defendants, alleging violations ofGeneral Obligations Law §§ 11-100 and 11-101.
The defendants moved for summary judgment dismissing the complaint in its entirety or, inthe alternative, dismissing so much of the complaint as seeks to recover damages for loss offuture support and for exemplary damages. The defendants argued that the plaintiff could notestablish her claim of damages in the form of actual damages and present and future supportfrom the decedent, and could not establish a claim for exemplary damages. The Supreme Courtdenied the defendants' motion.
General Obligations Law § 11-100 provides for recovery of damages for injury causedby the intoxication of a person under the age of 21. General Obligations Law § 11-101 (1)provides for a cause of action to recover actual and exemplary damages to any person injured "inperson, property, means of support or otherwise" by the unlawful sale of alcohol to an intoxicatedperson, whether resulting in his death or not. Both statutes (hereinafter together the Dram ShopAct), provide that parents may commence an action for damages thereunder (General ObligationsLaw §§ [*2]11-100 [4]; 11-101 [4]).
In assessing a claim for loss of support under the Dram Shop Act, the jury can consider thesupport the decedent provided to the plaintiffs before his or her death, and evidence of thesupport the plaintiffs could reasonably have expected but for his or her death (see Valicenti vValenze, 68 NY2d 826 [1986]; Sullivan v Mulinos of Westchester, Inc., 73 AD3d 1018 [2010]). Aparent cannot recover actual damages for loss of support under the Dram Shop Act absent ashowing that a child had a legal duty to support his parents or had undertaken an obligation to doso (see McArdle v 123 Jackpot,Inc., 51 AD3d 743 [2008]; McNeill v Rugby Joe's, 272 AD2d 384 [2000]).
In support of their motion for summary judgment, the defendants submitted the plaintiff'sdeposition testimony, in which she testified, inter alia, that the decedent's father paid the balanceof his college tuition not covered by a scholarship and that the plaintiff claimed the decedent as adependent on her state tax returns for the three years preceding his death, thus indicating that shesupported him. While the decedent gave the plaintiff cash for household expenses, the plaintiffcould not provide an amount, or state that these contributions were made with any regularity.Based on this proffered testimony, the defendants met their initial prima facie burden bydemonstrating that the plaintiff could not substantiate her claim to recover for loss of support (see McArdle v 123 Jackpot, Inc., 51AD3d 743 [2008]; McNeill v Rugby Joe's, 272 AD2d 384 [2000]).
However, the Supreme Court properly concluded that, in opposition, the plaintiff raisedtriable issues of fact regarding her claims for actual damages, and for loss of current and futuresupport from the decedent. The plaintiff also testified at her deposition that the decedent, her onlychild whom she had raised as a single mother, had been employed part-time throughout highschool and during college, and contributed to household expenses during that time. She furthertestified that the decedent had promised to support her in the future and upon retirement, inrecognition of her efforts as a single mother. She also offered proof that she had actual expensesconnected with his death, including the cost of the headstone and flowers. Accordingly, theplaintiff raised a triable issue of fact as to the decedent's current and future support and actualdamages (see Valicenti v Valenze, 68 NY2d 826 [1986]; Raynor v C.G.C. GroceryCorp., 159 AD2d 463 [1990]; Ray v Galloway's Cafe, 221 AD2d 612 [1995]).
The defendants' contention that the Supreme Court erred in denying that branch of theirmotion which was for summary judgment dismissing the plaintiff's claim for exemplary damagesis without merit. General Obligations Law § 11-101 (1) expressly provides for the right torecover exemplary damages. This has been held to require proof that the defendants' acts arewanton and reckless and demonstrate conscious indifference and disregard of the effect upon thehealth, safety, and rights of others (see General Obligations Law § 11-101 [1];McCauley v Carmel Lanes, 178 AD2d 835 [1991]). The defendants offered proof thatthey had policies about checking identification and not overserving alcohol to intoxicatedindividuals, thereby meeting their prima facie burden in moving for summary judgmentdismissing the exemplary damages claim (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]). However, in opposition, the plaintiff submitted the transcript of thedeposition testimony of witnesses to demonstrate that the defendants were not checkingidentification, and that the decedent was showing multiple signs of intoxication, including glassyeyes, slurred speech, difficulty standing or walking, and boisterous behavior. Accordingly theplaintiff raised a triable issue of fact on the issue of exemplary damages (see McCauley vCarmel Lanes, 178 AD2d 835 [1991]).
The defendants' remaining contentions are without merit. Dillon, J.P., Austin, Sgroi andCohen, JJ., concur.