Adamy v. Ziriakus

• Decision Date: 30 May 1997
• Docket Number: No. 1,1
• Parties: Candice G. ADAMY, individually and as Administratrix of Estate of Joseph P. Adamy, deceased, Respondent, v. Mark T. ZIRIAKUS, et al., Defendants, and T.G.I. Friday's, Inc., Appellant. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 623

659 N.Y.S.2d 623

231 A.D.2d 80

Candice G. ADAMY, individually and as Administratrix of Estate of Joseph P. Adamy, deceased, Respondent, v. Mark T. ZIRIAKUS, et al., Defendants, and T.G.I. Friday's, Inc., Appellant. (Appeal No. 1.)

Supreme Court, Appellate Division,

Fourth Department.

May 30, 1997.

Edward C. Cosgrove, Buffalo, for Appellant.

Law Offices of Eugene C. Tenney by Eugene Tenney, Buffalo, for Respondent.

Before DENMAN, P.J., and PINE, CALLAHAN, BALIO and FALLON, JJ.

DENMAN, Presiding Justice.

Plaintiff's decedent, a Town of Amherst police officer, died as a result of injuries sustained in an accident in which decedent's vehicle struck a vehicle driven by defendant Mark T. Ziriakus. Plaintiff commenced this action individually and as administratrix of the estate of decedent against, inter alia, Ziriakus and T.G.I. Friday's, Inc. (Friday's). Plaintiff alleges against Friday's that Friday's served Ziriakus alcoholic beverages prior to the accident, that Ziriakus became intoxicated while a patron of Friday's, and that Friday's is liable pursuant to General Obligations Law § 11-101 and Alcoholic Beverage Control Law § 65.

Plaintiff established at trial that Ziriakus went to Friday's around 10:30 P.M. on the night of the accident and had not had any alcoholic beverages before he got there. A person who was with Ziriakus that night testified that Ziriakus had two or three beers, but admitted that he had given an earlier statement that Ziriakus might have had four beers in the hour that the two spent together. The only other witnesses who observed Ziriakus at Friday's were various employees. They testified that they sold Ziriakus several drinks, but that he was not visibly intoxicated at any time while he was at Friday's. Ziriakus admitted that he had beer and liquor at Friday's and that he stayed there for about 2 1/2 hours, then left to go to a night club several blocks away. The accident occurred at approximately 1:30 A.M., minutes after he left Friday's.

Several police officers who responded to the accident testified that Ziriakus was intoxicated. One officer observed that Ziriakus had a strong odor of alcohol on his breath and that his eyes were bloodshot and glassy. The officer believed that Ziriakus was intoxicated. Another officer observed that Ziriakus had bloodshot and glassy eyes, that his speech was slurred, and that he had a "distinct odor of alcoholic beverage emanating from his breath". That officer performed field sobriety tests, which Ziriakus failed; the officer immediately arrested Ziriakus for driving while intoxicated. Furthermore, the officer observed Ziriakus staggering when he was taken to the station house. A third officer observed Ziriakus immediately after the accident and testified that Ziriakus "stared straight ahead" and would not respond to the officer's questions. The officer also observed signs of intoxication: a strong odor of alcohol on the breath and bloodshot and watery eyes.

Ziriakus did not cooperate with the police in taking a roadside Alco-Sensor test immediately after the accident, but agreed to submit to a blood test, which was administered at about 3:00 A.M. The blood sample revealed a blood alcohol content (BAC) of .17%. Plaintiff introduced certificates of conviction establishing that Ziriakus had been convicted of driving while intoxicated (Vehicle and Traffic Law § 1192[2], [3] ) and failure to yield (Vehicle and Traffic Law § 1141).

Plaintiff presented testimony from a forensic pathologist, who opined that, based upon Ziriakus' BAC of .17% at 3:00 A.M., Ziriakus would had to have had at least 12 drinks. He further concluded that Ziriakus' BAC when Ziriakus left Friday's would have been .2% and that, based on that conclusion, Ziriakus would have been visibly intoxicated when last served at Friday's.

Friday's presented an expert in the field of pharmacokinetics, who disagreed with plaintiff's expert, and opined that, if Ziriakus had consumed 12 drinks between 10:30 P.M. and 1:00 A.M., his BAC would have been .28% to .34% when he was at Friday's and Ziriakus would not have been able to walk out the door. In the opinion of Friday's expert, Ziriakus' BAC when Ziriakus left Friday's was between .08% and .12%. Friday's also presented testimony from an accident reconstruction expert, who testified that decedent was traveling between 67 and 73 miles per hour at the time of the accident, well in excess of the speed limit.

The jury found Ziriakus 40% liable, Friday's 30% liable, and decedent 30% liable, and awarded damages of $5,505,474.96 for past and future economic loss and funeral expenses. Friday's moved pursuant to CPLR 4404(a) for judgment notwithstanding the verdict or, in the alternative, for a new trial; Friday's also moved to reduce the jury verdict to reflect payments received by plaintiff from collateral sources (see, CPLR 4545[c] ) and to limit the judgment entered against it for future damages to one lump sum of $250,000 in favor of plaintiff (see, CPLR 5041[b] ). Supreme Court denied the motion to set aside the verdict and determined various damages issues. On appeal, Friday's contends that the verdict is against the weight of the evidence and that the court erred in determining the damages issues.

I

Friday's contends that the verdict is against the weight of the evidence because there is no direct proof that Ziriakus was served alcoholic beverages while he was visibly intoxicated. Friday's relies on the testimony of several bartenders and one patron, all of whom testified that Ziriakus was not visibly intoxicated. Plaintiff responds that visible intoxication was proved by circumstantial evidence, namely, the testimony of the police officers who observed Ziriakus in an intoxicated condition about 45 minutes after he left Friday's, by the amount of alcohol in Ziriakus' blood approximately 90 minutes after the accident, and by the opinion of the expert who testified that the BAC of Ziriakus while he was at Friday's would have been at least .2% and thus he would have been visibly intoxicated.

General Obligations Law § 11-101, commonly known as the Dram Shop Act, provides that a person who is injured by an intoxicated person has a cause of action against "any person who shall, by unlawfully selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication" (General Obligations Law § 11-101[1] ). Alcoholic Beverage Control Law § 65(2) prohibits the sale of alcoholic beverages to "[a]ny visibly intoxicated person". The statute was amended in 1986 to replace a more relaxed standard that imposed liability on any person who sold alcohol to a person "actually or apparently, under the influence of liquor" (see, L. 1986, ch. 750, § 1).

We reject the contention of Friday's that plaintiff is required to establish her Dram Shop cause of action by direct evidence. In Nesbitt v. Jackson, 178 A.D.2d 931, 578 N.Y.S.2d 799, we reinstated a Dram Shop cause of action where the plaintiffs "adduced competent eyewitness and expert opinion testimony tending to establish, circumstantially, that decedent was intoxicated at the time he was sold alcoholic beverages" (Nesbitt v. Jackson, supra, at 932, 578 N.Y.S.2d 799 [emphasis supplied] ). Similarly, in Blazynski v. Gallagher, 187 A.D.2d 1018, 590 N.Y.S.2d 365, we held that defendant The Trolley Stop was not entitled to summary judgment on the Dram Shop cause of action "because plaintiff raised a triable issue of fact whether the driver who injured plaintiff was visibly intoxicated when she was sold alcoholic beverages at The Trolley Stop" (Blazynski v. Gallagher, supra ). The records in those cases reveal that, as here, the moving defendants submitted competent proof from bartenders and patrons that the intoxicated person did not appear to be intoxicated while at the establishments of the moving defendants. In both cases, the plaintiffs submitted proof of the intoxicated person's BAC and presented expert testimony regarding the effects of alcohol; in Blazynski, there was additional testimony regarding the intoxicated person's behavior at The Trolley Stop and after the accident. Thus, in both cases, we relied on circumstantial evidence to deny the motions for summary judgment on the Dram Shop causes of action. It is not significant that Nesbitt and Blazynski are summary judgment cases; if evidence adduced by the plaintiffs in opposition to the summary judgment motions is sufficient to raise a question of fact for the jury, the jury's verdict following introduction of the same or similar evidence must be accepted unless it could not have been reached on any fair interpretation of the evidence (see, Grassi v. Ulrich, 87 N.Y.2d 954, 956, 641 N.Y.S.2d 588, 664 N.E.2d 499; Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163).

We agree with the Third Department that proof of intoxication, established by one's BAC or by the fact that one has consumed a certain amount of alcohol, is not enough, without more, to sustain a Dram Shop cause of action (see, Romano v. Stanley, 220 A.D.2d 5, 7-8, 643 N.Y.S.2d 238). Here, however, there was additional proof of Ziriakus' behavior following the accident that supported an inference by the jury that Ziriakus was visibly intoxicated when he left Friday's. We reject the contention of Friday's that the court erred in refusing to allow Friday's to submit evidence regarding the alcohol awareness and training provided to its employees. Finally, the dispute between the experts about how many drinks Ziriakus must have consumed to reach a BAC of .17% at 3:00 A.M. is a credibility question that was...