Bongiorno v. D.I.G.I., Inc.
| Decision Date | 30 April 1987 |
| Citation | 135 Misc.2d 516,515 N.Y.S.2d 969 |
| Court | New York Supreme Court |
| Parties | Frances BONGIORNO, as Administratrix of the goods, chattels & credits which were of Nancy B. Alfonso, deceased, Plaintiff, v. D.I.G.I., INC. d/b/a the New Bay Club, John Crowley, Porpoise Club, Inc. d/b/a Neptune Beach Club & Charlotte Mintz, Defendants. |
William A. Scorzari, P.C., Huntington, for plaintiff.
Shayne, Dachs, Stanisci & Corker, Mineola, for defendants.
Defendants D.I.G.I., Inc. d/b/a The New Bay Club and John Crowley have moved for an order seeking summary judgment dismissing plaintiff's complaint against defendant John Crowley upon the ground that the Court lacks personal jurisdiction over him. Plaintiff has cross moved for an order striking defendant John Crowley's answer as untime or, in the alternative, for an order dismissing the third and fourth affirmative defenses alleged in the answer of defendant John Crowley and D.I.G.I.
Upon agreement of the parties, plaintiff has accepted defendant John Crowley's answer as timely and defendants have withdrawn their affirmative defense of lack of personal jurisdiction. Therefore, the only question left for this Court's consideration is that portion of plaintiff's cross motion seeking dismissal of defendants' fourth affirmative defense, to wit, that the within action is barred by the applicable statute of limitations.
This is a so-called "Dram Shop" action commenced pursuant to General Obligations Law Section 11-101 arising out of an automobile accident on July 23, 1983 which resulted in the death of plaintiff's decedent Nancy Alfonso. Plaintiff commenced this action on or about May 15, 1986 by service of a summons and complaint. Issue was joined by service of an answer by defendants D.I.G.I. and Crowley on November 13, 1986. Included in that answer was an affirmative defense alleging that the action was not commenced within two years of the decedent's death and is, therefore, barred by the applicable statute of limitations. In support of her present application, plaintiff asserts that this action is timely since it is governed by the three year statute of limitations contained in CPLR 214. Defendant, on the other hand, contends that although plaintiff characterizes this cause of action as a Dram Shop action, language contained in plaintiff's complaint clearly identifies it as a wrongful death action and should be governed by the two year statute of limitations contained in Estates, Powers and Trust Law, Section 5-4.1. Defendants further assert that even if this Court were to consider plaintiff's action as a Dram Shop action, there is no authority for the proposition that such an action is not governed by the same statute of limitations as a classic wrongful death action.
Initially, it should be noted that plaintiff's first cause of action against the moving defendants is clearly one brought pursuant to General Obligations Law Section 11-101, commonly known as the Dram Shop Act. There can be no doubt that plaintiff seeks to impose liability on defendants in this action for their sale of intoxicating liquors and alcoholic beverages to one Peter M. Goode the driver of the automobile in which plaintiff's decedent was a passenger at the time of the accident.
Turning to the question of what the period of limitation should be for a Dram Shop action where the injured party is now deceased, it appears that such a question is one of first impression in this State. For the reasons stated hereinbelow, it is this Court's opinion that the within action is governed by the three year statute of limitations contained in CPLR 214 and, accordingly, plaintiff's application for an order dismissing defendants' fourth affirmative defense is granted.
Causes of action for wrongful death and Dram Shop actions were unknown at common law but were, rather, created by statute (see Arrow Electronics Inc. v. Stouffer Corp., 117 Misc.2d 554, 458 N.Y.S.2d 461; Matalavage v. Sadler, 77 A.D.2d 39, 432 N.Y.S.2d 103). As such, the statutes creating such causes of action are to be strictly construed (Young v. Robertshaw...
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Bongiorno v. D.I.G.I., Inc.
...plaintiff's cross motion to the extent of striking that affirmative defense. In its memorandum decision ( see, Bongiorno v. D.I.G.I., Inc., 135 Misc.2d 516, 515 N.Y.S.2d 969), the Supreme Court concluded that plaintiff's action was properly construed as one brought pursuant to the Dram Shop......
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Adkins v. Uncle Bart's, Inc.
... ... of support to decedent's dependants; recoverable damages under wrongful death act may include loss of companionship, advice, or counsel); Bongiorno v. D.I.G.I., Inc., 135 Misc.2d 516, 515 N.Y.S.2d 969, 971 (1987), aff'd, 138 A.D.2d 120, 529 N.Y.S.2d 804 (1988) (noting that wrongful death ... ...
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...York's Dram Shop Act pursuant to CPLR 214 since it creates a new liability not drawn from common law. Bongiorno v. D.I.G.I., Inc., 135 Misc.2d 516, 515 N.Y.S.2d 969, 970 (Sup.Ct.1987). Since the three year limitation is applicable, the current suit is IV The interest analysis with respect t......