| Kudisch v Grumpy Jack's, Inc. |
| 2013 NY Slip Op 08412 [112 AD3d 788] |
| December 18, 2013 |
| Appellate Division, Second Department |
| Alan Kudisch et al., Appellants, v Grumpy Jack's,Inc., Respondent. |
—[*1] Behman & Hambelton, LLP, New York, N.Y. (William E. Marsala of counsel), forrespondent.
In an action to recover damages for personal injuries and wrongful death, etc.,pursuant to, inter alia, General Obligations Law §§ 11-100 and 11-101, theplaintiffs appeal from an order of the Supreme Court, Nassau County (Jaeger, J.), datedMarch 12, 2012, which granted the defendant's motion, in effect, for summary judgmentdismissing the complaint, and denied their cross motion for leave to amend thecomplaint.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the defendant's motion which was for summary judgmentdismissing so much of the fourth cause of action as sought to recover damages formedical expenses and funeral expenses that the plaintiffs incurred on behalf of theirdecedent, and substituting therefor a provision denying that branch of the motion; as somodified, the order is affirmed, without costs or disbursements.
On October 30, 2008, at approximately 4:40 a.m., 20-year-old Zachary A. Kudischwas killed when he lost control of his automobile and it struck a guardrail and severaltrees. Zachary's parents, the plaintiffs Alan Kudisch and Diane Margolies-Litman, asadministrators of Zachary's estate and in their individual capacities, commenced thisaction against the defendant, seeking damages, inter alia, for violations of the Dram ShopAct (General Obligations Law §§ 11-100, 11-101). The plaintiffs assert that,prior to the accident, the defendant illegally sold alcohol to Zachary, causing him tobecome intoxicated. The defendant subsequently moved, in effect, for summaryjudgment dismissing the complaint. The plaintiffs cross-moved for leave to amend thecomplaint in order to assert a cause of action alleging gross negligence and to demandpunitive damages. The Supreme Court granted the defendant's motion in its entirety, anddenied the plaintiff's cross motion.
The Dram Shop Act does not create a cause of action in favor of one injured as a[*2]result of his or her own intoxicated condition, and themere youth of the injured person does not constitute an exception to the voluntaryintoxication rule (see Sheehy v Big Flats Community Day, 73 NY2d 629,635-636 [1989]; Rudden vBernstein, 61 AD3d 736, 738 [2009]; Searley v Wegmans Food Mkts., Inc., 24 AD3d 1202[2005]; Dunphy v J & I Sports Enters., 297 AD2d 23, 24 [2002]). The SupremeCourt properly granted that branch of the defendant's motion which was, in effect, forsummary judgment dismissing the cause of action which sought to recover damages onbehalf of the decedent's estate under the Dram Shop Act since the defendant established,prima facie, that the decedent's own intoxication caused the subject accident, and theplaintiffs failed to raise a triable issue of fact in opposition to that showing.
Moreover, our courts "have consistently refused to recognize a common-law cause ofaction against providers of alcoholic beverages in favor of persons injured as a result oftheir own voluntary intoxication" (Sheehy v Big Flats Community Day, 73 NY2dat 636; see Sherman v Robinson, 80 NY2d 483, 489 [1992]; D'Amico vChristie, 71 NY2d 76, 87-88 [1987]; Reuter v Flobo Enters., 120 AD2d 722,723 [1986]). In addition, the defendant had no duty to control the decedent's conduct soas to prevent him from harm, since the injury occurred beyond the area wheresupervision and control could reasonably be exercised (see Martino v Stolzman, 18NY3d 905, 908 [2012]; D'Amico v Christie, 71 NY2d at 87-88).Accordingly, based on the defendant's showing of its prima facie entitlement to judgmentas a matter of law dismissing the second, third, and fifth causes of action, which allegedcommon-law negligence, and the plaintiffs' failure to raise a triable issue of fact inopposition, the Supreme Court properly granted those branches of the defendant's motionwhich were for summary judgment dismissing those causes of action.
The Supreme Court also properly awarded summary judgment to the defendantdismissing the sixth cause of action, which sought to recover damages on behalf of thedecedent's estate for wrongful death (see EPTL 5-4.1). The defendant establishedits prima facie entitlement to judgment as a matter of law by demonstrating that theplaintiffs' decedent, had he survived, would have possessed no viable cause of action torecover for the injuries he sustained as a result of his voluntary intoxication and that, assuch, his estate similarly possesses no viable cause of action to recover damages forwrongful death (see Allen v County of Westchester, 172 AD2d 471 [1991];see also EPTL 5-4.1; Prink v Rockefeller Ctr., 48 NY2d 309, 315[1979]). The plaintiffs failed to raise a triable issue of fact in response to the defendant'ssubmission.
The fourth cause of action alleged violations of the Dram Shop Act and AlcoholicBeverage Control Law § 65, and sought damages on behalf of the plaintiffs, intheir individual capacities, for emotional suffering, loss of means of support, and medicaland funeral expenses.
With respect to the claim of emotional suffering, the defendant established its primafacie entitlement to judgment as a matter of law by showing that the Dram Shop Act andAlcoholic Beverage Control Law § 65 do not permit recovery for the mentaldistress suffered by the plaintiffs under the circumstances of this case, and the plaintiffsfailed to raise a triable issue of fact in opposition (see Marsico v SouthlandCorp., 148 AD2d 503, 505 [1989]; Scheu v High-Forest Corp., 129 AD2d366, 369 [1987]).
Likewise, absent a showing that a child had a legal duty to support his or her parentsor had undertaken an obligation to do so, a parent cannot recover damages for loss ofmeans of support under the Dram Shop Act and Alcoholic Beverage Control Law§ 65 (see Samela v PostRd. Entertainment Corp., 100 AD3d 857, 858 [2012]; McArdle v 123 Jackpot, Inc.,51 AD3d 743, 745-746 [2008]; Dunphy v J & I Sports Enters., 297 AD2d at25; McNeill v Rugby Joe's, 272 AD2d 384 [2000]; Gigliotti v ByrneDairy, 249 AD2d 973, 974 [1998]; Raynor v C.G.C. Grocery Corp., 159AD2d 463, 464 [1990]). Here, in support of its motion, the defendant met its prima facieburden by submitting a transcript of the plaintiffs' deposition testimony negating anyviable claim for loss of means of support (see Samela v Post Rd. EntertainmentCorp., 100 AD3d at 858; McArdle v 123 Jackpot, Inc., 51 AD3d at 745-746;McNeill v Rugby Joe's, 272 AD2d 384 [2000]; Gigliotti v Byrne Dairy,249 AD2d 973, 974 [1998]; Marsico v Southland Corp., 148 AD2d at 505). Inopposition, the plaintiffs failed to raise a triable issue of fact. Rather, their affidavits, inwhich both plaintiffs made statements contradicting their deposition testimony, appear toraise feigned issues of fact to avoid the consequences of their testimony and, [*3]thus, were insufficient to defeat summary judgment (see generally Sunshine Care Corp.v Warrick, 100 AD3d 981, 983 [2012]; Garcia-Rosales v Bais Rochel Resort, 100 AD3d 687[2012]; Cuebas v City ofYonkers, 97 AD3d 779, 780 [2012]; Steinsvaag v City of New York, 96 AD3d 932, 933[2012]).
However, contrary to the Supreme Court's determinations, since the plaintiffsestablished that, as parents, they had an obligation to support their minor child, theysucceeded in raising a triable issue of fact as to whether they are entitled to seek recoveryfor medical and funeral expenses that they incurred on his behalf (see McArdle v 123Jackpot, Inc., 51 AD3d at 746; Raynor v C.G.C. Grocery Corp., 159 AD2dat 464; Scheu v High-Forest Corp., 129 AD2d at 369). Accordingly, that branchof the defendant's motion which was for summary judgment dismissing the fourth causeof action insofar as it sought to recover damages for medical and funeral expenses shouldhave been denied.
The Supreme Court providently exercised its discretion in denying the plaintiffs'cross motion for leave to amend the complaint to assert a cause of action alleging grossnegligence and to demand punitive damages, as the proposed cause of action and demandfor relief were patently devoid of merit (see Reuter v Flobo Enters., 120 AD2d722, 723 [1986]; see alsogenerally Aurora Loan Servs., LLC v Dimura, 104 AD3d 796 [2013]; Ramos v Baker, 91 AD3d930, 932 [2012]). Mastro, J.P., Lott, Austin and Hinds-Radix, JJ., concur. [PriorCase History: 2012 NY Slip Op 33267(U).]