Dram Shop Act claim in New York

1993Under prevailing authority, however, the Dram Shop Act claim interposed by plaintiff individually, as parent, which is set forth as the fourth cause of action in the amended complaint, does state a claim (see, General Obligations Law § 11-101 [4]; see also, Etu v Cumberland Farms, 148 AD2d 821, 822-823 , supra; Powers v Niagara Mohawk Power Corp., supra, at 41-42; Reuter v Flobo Enters., 120 AD2d 722, 723 ).

1993Under prevailing authority, however, the Dram Shop Act claim interposed by plaintiff individually, as parent, which is set forth as the fourth cause of action in the amended complaint, does state a claim (see, General Obligations Law § 11-101 [4]; see also, Etu v Cumberland Farms, 148 AD2d 821, 822-823 , supra; Powers v Niagara Mohawk Power Corp., supra, at 41-42; Reuter v Flobo Enters., 120 AD2d 722, 723 ).

1983And in Mitchell v The Shoals ( 48 Misc 2d 381 , affd on other grounds 26 AD2d 78 , affd 19 NY2d 338 ), apportionment was also impliedly sanctioned when the plaintiff’s prior recovery against the intoxicated vendee was set off against the plaintiff’s recovery from the Dram Shop Act defendant.

1981Having made this find ing, the court concluded that (p 173) “there can be no diminution of the penalty in the way of damages fixed thereby, by applying in reduction or mitigation thereof, an amount of money fortuitously recovered in an action for wrongful death, either by way of settlement or a verdict therein.” More recently, however, in the case of Mitchell v The Shoals, Inc. ( 48 Misc 2d 381 , affd 26 AD2d 78 , affd 19 NY2d 338 ) the strict holding of Play ford v Perich (supra) was rejected, and the Dram Shop Act defendant was permitted to reduce a portion of the judgment against him by the

1983And in Mitchell v The Shoals ( 48 Misc 2d 381 , affd on other grounds 26 AD2d 78 , affd 19 NY2d 338 ), apportionment was also impliedly sanctioned when the plaintiff’s prior recovery against the intoxicated vendee was set off against the plaintiff’s recovery from the Dram Shop Act defendant.

1981Having made this find ing, the court concluded that (p 173) “there can be no diminution of the penalty in the way of damages fixed thereby, by applying in reduction or mitigation thereof, an amount of money fortuitously recovered in an action for wrongful death, either by way of settlement or a verdict therein.” More recently, however, in the case of Mitchell v The Shoals, Inc. ( 48 Misc 2d 381 , affd 26 AD2d 78 , affd 19 NY2d 338 ) the strict holding of Play ford v Perich (supra) was rejected, and the Dram Shop Act defendant was permitted to reduce a portion of the judgment against him by the

2022For a plaintiff to succeed on a summary judgment motion on a claim brought pursuant to the Dram Shop Act, the plaintiff must demonstrate that defendant provided alcohol to a person who was visibly intoxicated and that the service of alcohol had at least some reasonable connection to the resulting damages (see Catania v 124 In-To-Go, Corp., 287 AD2d 476 [2d Dept 2001], lv dismissed 97 NY2d 699 [2002]).

2022For a plaintiff to succeed on a summary judgment motion on a claim brought pursuant to the Dram Shop Act, the plaintiff must demonstrate that defendant provided alcohol to a person who was visibly intoxicated and that the service of alcohol had at least some reasonable connection to the resulting damages (see Catania v 124 In-To-Go, Corp., 287 AD2d 476 [2d Dept 2001], lv dismissed 97 NY2d 699 [2002]).

2009Assoc., 202 AD2d 622, 623 [1994]; Marsico v Southland Corp., 148 AD2d 503, 505 [1989]; Matalavage v Sadler, 77 AD2d 39, 43 [1980]; Moyer v Lo Jim Cafe, 19 AD2d 523 , 523-524 [1963], affd 14 NY2d 792 [1964]; Scatorchia v Caputo, 263 App Div 304, 305 [1942]).

2009Assoc., 202 AD2d 622, 623 [1994]; Marsico v Southland Corp., 148 AD2d 503, 505 [1989]; Matalavage v Sadler, 77 AD2d 39, 43 [1980]; Moyer v Lo Jim Cafe, 19 AD2d 523 , 523-524 [1963], affd 14 NY2d 792 [1964]; Scatorchia v Caputo, 263 App Div 304, 305 [1942]).

2009Assoc., 202 AD2d 622, 623 [1994]; Marsico v Southland Corp., 148 AD2d 503, 505 [1989]; Matalavage v Sadler, 77 AD2d 39, 43 [1980]; Moyer v Lo Jim Cafe, 19 AD2d 523 , 523-524 [1963], affd 14 NY2d 792 [1964]; Scatorchia v Caputo, 263 App Div 304, 305 [1942]).

2009Assoc., 202 AD2d 622, 623 [1994]; Marsico v Southland Corp., 148 AD2d 503, 505 [1989]; Matalavage v Sadler, 77 AD2d 39, 43 [1980]; Moyer v Lo Jim Cafe, 19 AD2d 523 , 523-524 [1963], affd 14 NY2d 792 [1964]; Scatorchia v Caputo, 263 App Div 304, 305 [1942]).

2004The affidavit of its bartender, that neither he nor another bartender served alcohol to a visibly intoxicated man on the night in question, does not mention a third bartender who worked that night (see Duran v Poggio, 244 AD2d 162 [1997]; Cole v O’Tooles of Utica, 222 AD2d 88, 92-93 [1996]).

2004The affidavit of its bartender, that neither he nor another bartender served alcohol to a visibly intoxicated man on the night in question, does not mention a third bartender who worked that night (see Duran v Poggio, 244 AD2d 162 [1997]; Cole v O’Tooles of Utica, 222 AD2d 88, 92-93 [1996]).

2004With respect to the Dram Shop Act claim, defendant failed to satisfy its initial burden of negating the possibility that it served alcohol to a visibly intoxicated person (see Darwish v City of New York, 287 AD2d 407 [2001]).

2004With respect to the Dram Shop Act claim, defendant failed to satisfy its initial burden of negating the possibility that it served alcohol to a visibly intoxicated person (see Darwish v City of New York, 287 AD2d 407 [2001]).

1995Grocery Corp., 159 AD2d 463 ; Reuter v Flobo Enters., 120 AD2d 722 ).

1995Grocery Corp., 159 AD2d 463 ; Reuter v Flobo Enters., 120 AD2d 722 ).

1995New York courts have consistently recognized the right of a parent to assert a Dram Shop Act claim for injury to property and loss of support, regardless of whether the intoxicated child had a legal duty to provide support to the parent (see, Soto v Montanez, 173 AD2d 90, 94 ; see also, Dodge v Victory Mkts., 199 AD2d 917 ; Schrader v Carney, 198 AD2d 779 ; Raynor v C.G.C.

1995New York courts have consistently recognized the right of a parent to assert a Dram Shop Act claim for injury to property and loss of support, regardless of whether the intoxicated child had a legal duty to provide support to the parent (see, Soto v Montanez, 173 AD2d 90, 94 ; see also, Dodge v Victory Mkts., 199 AD2d 917 ; Schrader v Carney, 198 AD2d 779 ; Raynor v C.G.C.

1995New York courts have consistently recognized the right of a parent to assert a Dram Shop Act claim for injury to property and loss of support, regardless of whether the intoxicated child had a legal duty to provide support to the parent (see, Soto v Montanez, 173 AD2d 90, 94 ; see also, Dodge v Victory Mkts., 199 AD2d 917 ; Schrader v Carney, 198 AD2d 779 ; Raynor v C.G.C.

1995New York courts have consistently recognized the right of a parent to assert a Dram Shop Act claim for injury to property and loss of support, regardless of whether the intoxicated child had a legal duty to provide support to the parent (see, Soto v Montanez, 173 AD2d 90, 94 ; see also, Dodge v Victory Mkts., 199 AD2d 917 ; Schrader v Carney, 198 AD2d 779 ; Raynor v C.G.C.

1992In opposing summary judgment, the plaintiff was obligated to come forward with admissible evidence sufficient to raise a triable issue of fact as to whether Rock Palace unlawfully served alcohol to Dolan while he was intoxicated (see, Garofalo v Henrietta Italia, Inc., 175 AD2d 580 ; Campbell v Lorenzo’s Pizza Parlor, 172 AD2d 478 ; Terbush v Buchman, 147 AD2d 826 ).

1992In opposing summary judgment, the plaintiff was obligated to come forward with admissible evidence sufficient to raise a triable issue of fact as to whether Rock Palace unlawfully served alcohol to Dolan while he was intoxicated (see, Garofalo v Henrietta Italia, Inc., 175 AD2d 580 ; Campbell v Lorenzo’s Pizza Parlor, 172 AD2d 478 ; Terbush v Buchman, 147 AD2d 826 ).

1992In opposing summary judgment, the plaintiff was obligated to come forward with admissible evidence sufficient to raise a triable issue of fact as to whether Rock Palace unlawfully served alcohol to Dolan while he was intoxicated (see, Garofalo v Henrietta Italia, Inc., 175 AD2d 580 ; Campbell v Lorenzo’s Pizza Parlor, 172 AD2d 478 ; Terbush v Buchman, 147 AD2d 826 ).

1983Div., 35 NY2d 1, 4 ).

1981Nor is this rule any different for one who has been vicariously cast in liability for a Dram Shop Act violation, and while a tavern owner may be entitled to indemnification from his errant servant, neither he nor his employee may seek indemnification from a vendee whose actions have caused them to be answerable for a third party’s injuries (King v Ees-Tee Rest., supra).

1981Nor is this rule any different for one who has been vicariously cast in liability for a Dram Shop Act violation, and while a tavern owner may be entitled to indemnification from his errant servant, neither he nor his employee may seek indemnification from a vendee whose actions have caused them to be answerable for a third party’s injuries (King v Ees-Tee Rest., supra).

1981While the decision in that case appeared to rely heavily on Wood v City of New York (supra) it also addressed the argument that to grant a right of apportionment to a Dram Shop Act defendant would contravene the legislative intent behind section 11-101 of the General Obligations Law.

1981The only New York appellate court to consider the precise question of the availability of contribution to a Dram Shop Act defendant concluded that such a right was available (Wood v City of New York, 39 AD2d 534 , supra).

1981Indeed, since it is not clear that willfulness is a necessary predicate to Dram Shop Act liability (see, e.g., Harris v Hurlburt, 83 Misc 2d 626 ), it seems incongruous to automatically deny contribution to all such defendants, particularly in light of the fact that such a right lies even in favor of an intentional tort-feasor (Taft v Shaffer Trucking, 52 AD2d 255, supra).

1981Indeed, since it is not clear that willfulness is a necessary predicate to Dram Shop Act liability (see, e.g., Harris v Hurlburt, 83 Misc 2d 626 ), it seems incongruous to automatically deny contribution to all such defendants, particularly in light of the fact that such a right lies even in favor of an intentional tort-feasor (Taft v Shaffer Trucking, 52 AD2d 255, supra).

1981It seems that Michigan’s courts have long been guided by the view that since purely statutory liabilities are generally in derogation of the common law they are to be construed strictly so as not to extend the liability so created to anyone other than the violator of the statute (Geib v Slater, 320 Mich 316 ).

1981While the Dram Shop laws of this State may have been motivated in part by a desire to curb intemperance, one of their primary goals was to assure that persons injured in person or support by the intemperance of others would have an available avenue of recovery for their injuries (Bertholf v O’Reilly, 74 NY 509 ; Matalavage v Sadler, 77 AD2d 39 , supra; note Liability Under the New York Dram Shop Act, 8 Syr L Rev 252; cf. Osborn v Borchetta, 20 Conn S 163 [New York Civil Rights Law, § 16 not penal in the usual sense]).

1981While the Dram Shop laws of this State may have been motivated in part by a desire to curb intemperance, one of their primary goals was to assure that persons injured in person or support by the intemperance of others would have an available avenue of recovery for their injuries (Bertholf v O’Reilly, 74 NY 509 ; Matalavage v Sadler, 77 AD2d 39 , supra; note Liability Under the New York Dram Shop Act, 8 Syr L Rev 252; cf. Osborn v Borchetta, 20 Conn S 163 [New York Civil Rights Law, § 16 not penal in the usual sense]).