| Sullivan v Mulinos of Westchester, Inc. |
| 2014 NY Slip Op 01161 [114 AD3d 844] |
| February 19, 2014 |
| Appellate Division, Second Department |
| Cathy Sullivan, Appellant, v Mulinos ofWestchester, Inc., et al., Respondents, et al., Defendants. |
—[*1] Rosenbaum & Taylor, P.C., White Plains, N.Y. (Dara L. Rosenbaum of counsel), forrespondent Mulinos of Westchester, Inc. Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains, N.Y. (William H.Bave, Jr., of counsel), for respondent Self-Service, Inc., doing business as TrottersTavern.
In an action, inter alia, to recover damages for personal injuries and wrongful death,the plaintiff appeals from a judgment of the Supreme Court, Rockland County (Berliner,J.), entered May 23, 2012, which, upon the granting of the separate motions of thedefendants Mulinos of Westchester, Inc., and Self-Service, Inc., doing business asTrotters Tavern, pursuant to CPLR 4401, made at the close of evidence, for judgment asa matter of law dismissing the complaint insofar as asserted against each of them, is infavor of those defendants and against her dismissing the complaint insofar as assertedagainst those defendants.
Ordered that the judgment is reversed, on the law, with one bill of costs to theappellant payable by the respondents appearing separately and filing separate briefs, theseparate motions of the defendants Mulinos of Westchester, Inc., and Self-Service, Inc.,doing business as Trotters Tavern, pursuant to CPLR 4401 for judgment as a matter oflaw dismissing the complaint insofar as asserted against each of them are denied, and thecomplaint is reinstated insofar as asserted against those defendants.
On February 11, 2005, at approximately 1:45 a.m., while traveling over the TappanZee Bridge, the plaintiff's decedent, John Sullivan (hereinafter Sullivan), lost control ofthe vehicle he was operating and was killed when it struck a lamp pole and went over aguide rail and into the Hudson River. Sullivan, who allegedly was intoxicated at the timeof his death, had patronized establishments owned by the defendant Mulinos ofWestchester, Inc. (hereinafter Mulinos), and Self- Service, Inc., doing business asTrotters Tavern (hereinafter Trotters Tavern), prior to the accident. The plaintiffcommenced this action against, among others, Mulinos and Trotters Tavern, contending,inter alia, that they violated General Obligations Law § 11-101 by selling alcoholicbeverages to Sullivan while he was visibly intoxicated.
At trial, the plaintiff presented testimony from, among others, the person who met[*2]Sullivan at Mulinos and later drove him to TrottersTavern, and a patron who socialized with Sullivan for "several hours" at Trotters Tavern.The plaintiff also presented the testimony of the Rockland County Medical Examiner. Atthe conclusion of the plaintiff's case, Mulinos and Trotters Tavern separately moved forjudgment as a matter of law dismissing the complaint insofar as asserted against each ofthem for failure to establish a prima facie case. The Supreme Court granted both motionsand, in the judgment appealed from, dismissed the complaint insofar as asserted againstMulinos and Trotters Tavern.
"A trial court's grant of a CPLR 4401 motion for judgment as a matter of law isappropriate where the trial court finds that, upon the evidence presented, there is norational process by which the fact trier could base a finding in favor of the nonmovingparty" (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). Applying this standard,the Supreme Court improperly granted the separate motions by Mulinos and TrottersTavern (see Sutter v InserraSupermarkets, Inc., 104 AD3d 759 [2013]).
General Obligations Law § 11-101, known as the Dram Shop Act, providesthat a party that "unlawfully" sells alcohol to another person is liable for injuries causedby reason of that person's intoxication (see Adamy v Ziriakus, 92 NY2d 396, 400[1998]; Romano v Stanley, 90 NY2d 444 [1997]; LaCatena v M.C. & E.D. Beck,Inc., 35 AD3d 388 [2006]). Under Alcoholic Beverage Control Law § 65(2), it is unlawful to furnish an alcoholic beverage to "[a]ny visibly intoxicated person"(see Adamy v Ziriakus, 92 NY2d at 400).
Contrary to the Supreme Court's conclusion, accepting the evidence presented at trialby the plaintiff as true, and according it every favorable inference, the plaintiffestablished, prima facie, that there was a "reasonable or practical connection" betweenthe alleged unlawful sale of alcohol at Mulinos and the resulting damages (Sullivan v Mulinos of Westchester,Inc., 73 AD3d 1018, 1020 [2010] [internal quotation marks omitted]; see McArdle v 123 Jackpot,Inc., 51 AD3d 743, 746 [2008]; McNeill v Rugby Joe's, 298 AD2d 369,370 [2002]; Catania v 124 In-To-Go, Corp., 287 AD2d 476, 477 [2001];Adamy v Ziriakus, 231 AD2d 80, 88 [1997], affd 92 NY2d 396 [1998];Church v Burdick, 227 AD2d 817, 818 [1996]; Johnson v Plotkin, 172AD2d 88, 92 [1991]). Although the Medical Examiner acknowledged that the alcoholthat Sullivan consumed at Mulinos would have been metabolized by the time of theaccident, "assum[ing] that [he] did not consume anymore alcohol that evening," she alsoopined, based on the testimony of the witnesses and Sullivan's blood alcohol content atthe time of the accident, that Sullivan did indeed consume numerous drinks after leavingMulinos. Considering the evidence presented, a jury could have reasonably concludedthat Sullivan remained intoxicated throughout the night, that the alcohol consumed atMulinos contributed to his intoxication to an appreciable degree, and thus, that there wasa reasonable and practical connection between the alcohol served at Mulinos and thedamages sustained in the accident (see McArdle v 123 Jackpot, Inc., 51 AD3d at746; McNeill v Rugby Joe's, 298 AD2d at 370; Catania v 124 In-To-Go,Corp., 287 AD2d at 477).
The evidence presented by the plaintiff, when accepted as true and afforded everyfavorable inference, was also sufficient to establish, prima facie, that Sullivan wasfurnished alcohol at Trotters Tavern while he was visibly intoxicated (see Adamy vZiriakus, 92 NY2d at 400; Sullivan v Mulinos of Westchester, Inc., 73AD3d at 1020). The Medical Examiner's opinion, coupled with testimony from theperson who met Sullivan at Mulinos and later drove him to Trotters Tavern, wassufficient to establish that Sullivan consumed alcohol at Trotters Tavern and that he wasvisibly intoxicated at the time (see Adamy v Ziriakus, 92 NY2d at 400;Sullivan v Mulinos of Westchester, Inc., 73 AD3d at 1020). Moreover,considering the circumstantial evidence presented, it would have been reasonable andpermissible for a jury to infer that Trotters Tavern furnished the alcohol that Sullivanconsumed (see Adamy v Ziriakus, 92 NY2d at 402-403).
As the plaintiff made out a prima facie case against both Mulinos and TrottersTavern for violations of General Obligations Law § 11-101, those defendants'separate motions for judgment as a matter of law should have been denied and the mattershould have been submitted to the jury. Skelos, J.P., Lott, Cohen and Hinds-Radix, JJ.,concur.