Allan v. Keystone Nineties, Inc.

CourtNew York Supreme Court Appellate Division
Citation427 N.Y.S.2d 107,74 A.D.2d 992
PartiesRichard S. ALLAN and James R. Mittelstaedt, Appellants, v. KEYSTONE NINETIES, INC., Respondent.
Decision Date28 March 1980

Paul William Beltz, P.C., Buffalo by Russell T. Quinlan, Buffalo, for appellants.

O'Shea, Adamson, Reynolds & Napier, Buffalo by William Martin, Buffalo, for respondent.

Before CARDAMONE, J. P., and SIMONS, SCHNEPP, DOERR and MOULE, JJ.

MEMORANDUM:

Appellants were employed as New York State Troopers when the vehicle in which they were sitting was struck from behind by a vehicle operated by John Maroney. At the time of the accident Maroney was on his way home from the respondent's Keystone Nineties Tavern where he had spent most of the evening. Appellants brought this action against respondent under the so-called Dram Shop Act, General Obligations Law, § 11-101. At the close of appellants' case the trial court granted respondent's motion to dismiss the complaints on the ground that appellants had failed to establish a prima facie case. Appellants contend that the evidence submitted was sufficient to withstand a motion to dismiss and that the trial court erred in refusing to consider certain evidence concerning Maroney's state of inebriation. We agree.

General Obligations Law, § 11-101 creates, on behalf of persons injured by any intoxicated person, a cause of action against all who "by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication". An illegal sale is a sale of alcoholic beverages to a minor, to a habitual drunk or to an "intoxicated person or to any person, actually or apparently, under the influence of liquor" (Alcoholic Beverage Control Law § 65). Thus, in order for the appellants to make out a prima facie case it was incumbent that they set forth proof from which it could be concluded that respondent caused or contributed to Maroney's intoxication by selling intoxicating drinks to him at a time when he was intoxicated, under the influence of alcohol or apparently under the influence of alcohol. We believe that a jury considering all of the evidence presented, including that which was improperly stricken could so find.

The trial court refused to admit certain statements of witnesses Maroney and Kelley to the effect that Maroney was intoxicated. This was error. A lay witness is competent to express his opinion as to whether he or any other...

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8 cases
  • Lipp v. Saks
    • United States
    • New York Supreme Court — Appellate Division
    • 20 Abril 1987
    ...of intoxication at the time of the accident (see, Ross v. Roberta Bar & Grill, 83 A.D.2d 550, 441 N.Y.S.2d 23; Allan v. Keystone Nineties, 74 A.D.2d 992, 427 N.Y.S.2d 107), the trial court did not abuse its discretion in excluding this testimony on the ground that under the circumstances of......
  • Anderson v. Comardo
    • United States
    • New York Supreme Court
    • 11 Febrero 1981
    ...to any person, actually or apparently, under the influence of liquor." (Alcoholic Beverage Control Law, § 65; Allan v. Keystone Nineties, Inc., 74 A.D.2d 992, 427 N.Y.S.2d 107). Liability under this law is not grounded in negligence but, rather, is based upon breach of a statutory duty unkn......
  • Senn v. Scudieri
    • United States
    • New York Supreme Court — Appellate Division
    • 26 Marzo 1991
    ...(ABC § 65, former subdivision 2, Gonyea, Jr. v. Folger, 133 A.D.2d 964, 965, 520 N.Y.S.2d 670 (1987), and Allan v. Keystone Nineties, Inc., 74 A.D.2d 992, 993, 427 N.Y.S.2d 107 (1980)). The duty, under the Dram Shop Act, imposed on the owner of an establishment selling intoxicating liquor, ......
  • Bhowmik v. Santana
    • United States
    • New York Supreme Court — Appellate Division
    • 7 Junio 2016
    ...to testify that a person appears to be intoxicated when such testimony is based on personal observation”]; Allan v. Keystone Nineties, 74 A.D.2d 992, 427 N.Y.S.2d 107 [4th Dept.1980], appeal dismissed 52 N.Y.2d 899 [1981] [same] ). This, coupled with plaintiff's own deposition testimony, su......
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9 books & journal articles
  • Witness examination
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2015 Contents
    • 2 Agosto 2015
    ...intoxication based on conduct including exceeding the speed limit and failing to heed traffic signals. Allan v. Keystone Nineties, Inc., 74 A.D.2d 992, 427 N.Y.S.2d 107 (4th Dept. 1980). A lay person may express an opinion concerning another’s intoxication in a “Dram Shop” action (holding b......
  • Witness examination
    • United States
    • James Publishing Practical Law Books New York Objections
    • 3 Mayo 2022
    ...intoxication based on conduct including exceeding the speed limit and failing to heed traffic signals. Allan v. Keystone Nineties, Inc. , 74 A.D.2d 992, 427 N.Y.S.2d 107 (4th Dept. 1980). A lay person may express an opinion concerning another’s intoxication in a “Dram Shop” action (holding ......
  • Witness examination
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2019 Contents
    • 2 Agosto 2019
    ...intoxication based on conduct including exceeding the speed limit and failing to heed traic signals. Allan v. Keystone Nineties, Inc. , 74 A.D.2d 992, 427 N.Y.S.2d 107 (4th Dept. 1980). A lay person may express an opinion concerning another’s intoxication in a “Dram Shop” action (holding ba......
  • Witness examination
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2021 Contents
    • 2 Agosto 2021
    ...intoxication based on conduct including exceeding the speed limit and failing to heed traic signals. Allan v. Keystone Nineties, Inc. , 74 A.D.2d 992, 427 N.Y.S.2d 107 (4th Dept. 1980). A lay person may express an opinion concerning another’s intoxication in a “Dram Shop” action (holding ba......
  • Request a trial to view additional results

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