Anderson v. Comardo

Decision Date11 February 1981
PartiesRobert A. ANDERSON, Individually and as Administrator of the Estates of Judy Anderson, Janet Anderson and Jane Anderson, Deceased and Bonnie Anderson, Individually, Plaintiffs, v. Phillip COMARDO and Norma Comardo, d/b/a Red Top Grill, Frank Whitman, d/b/a Valley Hotel, Boyce-Canandaigua, Inc., (Roseland Park), and Interstate United Corporation (Cease Commissary Service, Inc.), Defendants. INTERSTATE UNITED CORPORATION and Cease Commissary Service, Inc., Defendants and Third-Party Plaintiffs, v. Donald A. ROWE, Third-Party Defendant.
CourtNew York Supreme Court

DAVID O. BOEHM, Justice.

In this motion for dismissal of a third-party complaint we are squarely faced with the question of whether the public policy underlying New York State's Dram Shop Act (G.O.L. § 11-101) permits a defendant charged with liability under that statute to seek indemnity or contribution from a vendee whose negligence may have contributed to the complained of injuries.

Section 11-101 of the General Obligations Law creates, on behalf of persons injured by any intoxicated person, a cause of action against all who "by unlawfully 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; 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 unknown at common law (Moyer v. Lo Jim Cafe, 19 A.D.2d 523, 240 N.Y.S.2d 277, affd. 14 N.Y.2d 792, 251 N.Y.S.2d 30, 200 N.E.2d 212; see, generally, McNally v. Addis, 65 Misc.2d 204, 317 N.Y.S.2d 157). In order to recover under G.O.L. § 11-101, a plaintiff injured by an intoxicated person need only show that the defendant's illegal furnishing of liquor to that person contributed to his intoxication (3 N.Y.Jur.2d, Alcoholic Beverages, 469).

In the present action the defendants are alleged to have contributed to the intoxication of one Donald A. Rowe who, because of such intoxication, caused an automobile accident that resulted in the death of three sisters and the infliction of serious injuries upon another. The defendants have, in turn, interposed a third-party claim against Rowe "for the amount of any recovery obtained against them." Third party defendant, Rowe, now moves for dismissal of the claim against him on the ground that neither common law indemnity nor contribution under CPLR Art. 14 ought to be available to violators of New York's Dram Shop Act. Rowe contends that to permit either claim against him would defeat the public policy underlying G.O.L. § 11-101 by effectively permitting one who unlawfully sells alcohol to escape a liability which is intended to be essentially penal.

The question of whether the defendants may assert a claim of indemnity need not detain us long for it is settled that they may not. In the absence of an express contract the right of indemnity arises where one party is compelled by a judgment to respond in damages for the wrongful act of another. In such a case the person who has been required to answer for another's tort may seek recovery against that party by whose act or neglect the injury was produced. The purpose of the rule is to prevent unjust enrichment of a wrongdoer at the expense of one who has been held only vicariously liable for the former's negligence by shifting the whole economic burden from the vicarious tortfeasor to the one actively culpable in causing the loss (Green Bus v. Cons. Ins., 74 A.D.2d 136, 426 N.Y.S.2d 981; 2 A Weinstein-Korn-Miller P 1401.09). Even so, a right of indemnification will not lie against every active wrongdoer who caused the original plaintiff harm, but only against that party whose culpable acts have been imputed to the vicarious defendant (Storch v. Moritsky, 24 A.D.2d 1027, 266 N.Y.S.2d 54).

The sale of intoxicating liquor to an intoxicated person is active wrongdoing, separate from but on an equal footing with the acts of the inebriate which resulted in injury (King v. Ees-Tee Rest., 36 A.D.2d 680, 319 N.Y.S.2d 791; Kinney v. 1809 Forest Ave., 7 Misc.2d 1, 165 N.Y.S.2d 149). Because of this a Dram Shop Act violator is foreclosed from seeking indemnification from his vendee. Nor 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).

To be distinguished from indemnity, however, is the doctrine of equitable contribution which was introduced to this State in 1972 by the Court of Appeals in Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 and which is now codified in Article 14 of the CPLR.

This right of contribution is much broader than that afforded by common law indemnity, requiring only that the party seeking contribution and the party from whom contribution is sought be liable, in whole or in part, for the same injury (Nassau Roofing & Sheet Metal Co., Inc. v. Celotex Corp., 74 A.D.2d 679, 424 N.Y.S.2d 786). It is sufficient if each party's breach of its respective duty was in part responsible for the harm suffered and so even the perpetrator of an intentional tort may invoke CPLR 1401 to require contribution from one who by mere negligence contributed to an injury (Taft v. Shaffer Trucking, 52 A.D.2d 255, 383 N.Y.S.2d 744, app. dismd. 42 N.Y.2d 974).

Nevertheless, it was recognized by the Judicial Conference, at whose behest CPLR Article 14 was enacted, that under certain circumstances the availability of a right to contribution might frustrate the legislative intent behind statutes imposing strict or absolute liability for disfavored conduct. The 1974 Judicial Conference Report stated:

"When liability to the injured person is predicated upon the violation of a statute, difficult questions concerning the appropriateness of applying the proposed Article arise when the violation of the statute gives rise to strict or absolute liability and does not merely constitute negligence per se. See Van Gassbeck v. Webatuck Cent. School, 21 N.Y.2d 239, 244 (287 N.Y.S.2d 77) (1967) (explanation of difference between the two doctrines).

It seems clear that in those strict or absolute liability cases in which every person subject to a claim for contribution has violated the statute, the proposed Article should apply, for its application will foster the goal of loss distribution among wrongdoers without interfering with any legislative policy of deterrence which might have been a motivating factor in the passage of the act. See, e. g., Rubel v. Stackrow, 72 Misc.2d 734 (340 N.Y.S.2d 691), (Sup.Ct., Albany Co. 1973) (Dole applicable where all wrongdoers violated Dram Shop Act.)

However, where only one of the wrongdoers is charged with violating a statute imposing absolute liability, and such wrongdoer attempts to assert a claim for contribution against one who is liable only for common law negligence, resolution of the issue is more difficult. It is suggested that courts should apply this Article in such cases unless it is clear that the legislative policy which led to the passage of the statute would be frustrated by the granting of contribution in favor of the person who violated the statute. See Wood v. City of New York, 39 A(pp). D(iv). 2d 534 (330 N.Y.S.2d 923) (1st Dept. 1972) (mem.) (Dram Shop Act violater may assert Dole claim against intoxicated person)."

(Twelfth Annual Report of N.Y. Judicial Conference on CPLR (Twentieth Annual Report) pp. 212, 215-16; see also, Practice Commentary, Siegel, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3019, p. 298).

The third-party defendant in this action now urges that the legislative policy which led to the passage of G.O.L. § 11-101 and its predecessors will be frustrated if those who sell intoxicants illegally are permitted to seek contribution from the persons to whom they unlawfully sold the liquor. The 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 A.D.2d 534, 330 N.Y.S.2d 923, supra). It appears from a review of that decision and the briefs submitted in the appeal, however, that the public policy argument now advanced was not raised or considered by that court. Nevertheless, other New York courts have considered the argument in one context or another and, while third-party defendant Rowe's position is not without support, my reading of the case law leads me to conclude that the Dram Shop Act defendants in this case may maintain claims for contribution against Rowe.

In Rubel v. Stackrow, 72 Misc.2d 734, 340 N.Y.S.2d 691, supra, a post-Dole case, the court held that one Dram Shop Act defendant could seek equitable contribution from another defendant under the Act. While decision in that case appeared to rely...

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