Bongiorno v. D.I.G.I., Inc.

CourtNew York Supreme Court — Appellate Division
Writing for the CourtBefore BRACKEN; KOOPER; BRACKEN
Citation529 N.Y.S.2d 804,138 A.D.2d 120
Decision Date20 June 1988
PartiesFrances BONGIORNO, Administratrix, etc., Respondent, v. D.I.G.I., INC., d/b/a The New Bay Club, et al., Appellants, et al., Defendants.

Page 804

529 N.Y.S.2d 804
138 A.D.2d 120
Frances BONGIORNO, Administratrix, etc., Respondent,
v.
D.I.G.I., INC., d/b/a The New Bay Club, et al., Appellants,
et al., Defendants.
Supreme Court, Appellate Division,
Second Department.
June 20, 1988.

Termini & Epstein, Mineola (Shayne, Dachs, Stanisci & Corker [Norman H. Dachs and Jonathan A. Dachs] of counsel), for appellants.

Scorzari & Perrotta, Huntington (Arlene P. Brown, of counsel), for respondent.

Before BRACKEN, J.P., and WEINSTEIN, RUBIN and KOOPER, JJ.

KOOPER, Justice.

In this case of first impression before a New York appellate court, we are called upon to select the appropriate limitations

Page 805

period to be applied to an action asserted under General Obligations Law § 11-101, the so-called "New York Dram Shop Act". For the reasons that follow, we conclude that plaintiff's action is properly subject to the three year limitations period prescribed by CPLR 214(2). Accordingly, we affirm the order of the Supreme Court.

I.

The plaintiff's lawsuit has its genesis in an automobile accident which occurred on July 23, 1983, on Montauk Highway in Suffolk County. The pertinent facts, which are undisputed, disclose that the plaintiff's decedent, Nancy Alfonso, was a passenger in an automobile operated by one Peter Goode. Goode had been drinking at the defendant New Bay Club in East Quoque, where he was allegedly served excessive amounts of alcohol. The driver of the other automobile involved in the collision, one Brian Deignan, was also allegedly intoxicated, having been served excessive amounts of alcohol at the defendant Neptune Beach Club, located in Hampton Bays. Nancy Alfonso was killed in the collision.

II.

Thereafter, letters of administration were issued to the plaintiff on September 19, 1983. On July 16, 1984, the plaintiff commenced an action against the various drivers and owners of the two automobiles. The instant action against, inter alia, the two defendant clubs was commenced by the service of a summons and verified complaint on or about May 15, 1986, approximately two years and 10 months after the cause of action allegedly accrued. The appellants' verified answer included as an affirmative defense the contention that the instant action was untimely inasmuch as it had not been commenced within two years of the decedent's death as prescribed by EPTL 5-4.1.

III.

Subsequently the defendant John Crowley moved to dismiss the complaint, inter alia, for lack of personal jurisdiction. The plaintiff cross-moved for an order striking, inter alia, the appellants' fourth affirmative defense based on the Statute of Limitations. The court granted the 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 Act (see, General Obligations Law § 11-101) 1 inasmuch as the underlying allegations of liability centered upon the defendants' sale of excessive quantities of alcohol to the two intoxicated drivers involved in the fatal accident. After discussing the differing purposes underlying a Dram Shop action and a wrongful death action, and the different bases for liability under each theory of recovery, the Supreme Court concluded that the plaintiff's lawsuit was properly characterized a Dram Shop action and governed by CPLR 214(2), which imposes a three-year Statute of Limitations in respect to statutorily created liabilities. The court thereupon granted plaintiff's cross-motion

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insofar as it sought dismissal of the appellants' affirmative defense premised on the alleged untimeliness of the action. It is from this determination that the appeal was taken. We affirm.

IV.

The underlying premise upon which the appellants rest their first contention is that the averments set forth in the complaint closely resemble, and therefore must be construed as interposing, a claim seeking recovery for the wrongful death of the decedent pursuant to EPTL 5-4.1, thereby requiring application of the two-year limitation period prescribed by EPTL 5-4.1(1). 2 In support of this contention, the appellants note, inter alia, that (1) the caption of the complaint reveals that the action is "styled in the manner of a wrongful death action"; (2) the action was brought by the administratrix of the decedent's estate, whose appointment, the appellants maintain, "is an essential element of the cause of action for wrongful death"; and (3) the allegations in the body of the complaint "attest to the fact that a wrongful death action was intended" inasmuch as the complaint states that the action was brought on behalf of "those entitled to share in the estate of the decedent" and is brought to recover "pecuniary damages" and "funeral expenses". The appellants conclude that "by couching her complaint and her allegations of damage in terms reserved for wrongful death actions, as opposed to Dram Shop actions, Plaintiff * * * has manifested her clear and unambiguous intent to allege and plead an action for wrongful death and not a Dram Shop action". We find these contentions to be unpersuasive.

We note, initially, that the form in which the specific allegations of liability are cast is of no talismanic significance in terms of assessing the reality and essential nature of the relief sought ( cf., Sears, Roebuck & Co. v. Enco Assoc., 43 N.Y.2d 389, 397, 401 N.Y.S.2d 767, 372 N.E.2d 555; State of New York v. Cortelle Corp., 38 N.Y.2d 83, 86, 378 N.Y.S.2d 654, 341 N.E.2d 223; Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 264, 11 N.E.2d 902; Lyons v. Tiedemann, 135 A.D.2d 509, 522 N.Y.S.2d 159; Matalavage v. Sadler, 77 A.D.2d 39, 432 N.Y.S.2d 103). In any event, the substantive allegations contained in the complaint are entirely consistent with, and reasonably construed as, implicating the remedial provisions of the Dram Shop Act, which, we note, authorizes recovery for injury to person, property or means of support "by reason of the intoxication of any person, whether resulting in his death or not" (see, General Obligations Law § 11-101[1]; Valicenti v. Valenze, 68 N.Y.2d 826, 507 N.Y.S.2d 616, 499 N.E.2d 870; Wellcome v. Student Coop. of Stony Brook, 125 A.D.2d 393, 509 N.Y.S.2d 816; Matalavage v. Sadler, supra; see also, Mead v. Stratton, 87 N.Y. 493; Lyons v. Tiedemann, supra; Comment, Intoxication--Liability and Recovery: A Practical Look at New York's Dram Shop Act, 39 Albany...

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9 practice notes
  • Adkins v. Uncle Bart's, Inc., No. 970261.
    • United States
    • Supreme Court of Utah
    • January 18, 2000
    ...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 and dramshop actions are "wholly unrelated both as to scope and ¶ 38 The plaintiffs rely......
  • Digennaro v. Gates Police Dep't, 07-CV-6426 CJS
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • June 17, 2013
    ...Mar. 22, 1994) (emphasis added), aff'd, 220 A.D.2d 251, 632 N.Y.S.2d 98 (1st Dept. 1995); see also, Bongiorno v. D.I.G.I., Inc., 138 A.D.2d 120, 127, 529 N.Y.S.2d 804, 808 (2d Dept. 1988) (Indicating that the wrongful death statute "does not purport to create an independent, actionable wron......
  • Boudine v. Goldmaker, Inc., 2014-08480
    • United States
    • New York Supreme Court Appellate Division
    • July 1, 2015
    ...unknown at common law, which creates “ ‘an expansive cause of action’ ” and imposes strict liability (Bongiorno v. D.I.G.I., Inc., 138 A.D.2d 120, 127, 529 N.Y.S.2d 804, quoting 14 N.Y.S.3d 407Matalavage v. Sadler, 77 A.D.2d 39, 43, 432 N.Y.S.2d 103 ; see Mead v. Stratton, 87 N.Y. 493, 496–......
  • Sullivan v. Mulinos of Westchester Inc.
    • United States
    • New York Supreme Court Appellate Division
    • May 18, 2010
    ...826, 829, 507 N.Y.S.2d 616, 499 N.E.2d 870; Dunphy v. J & I Sports Enters., 297 A.D.2d 23, 748 N.Y.S.2d 595; Bongiorno v. D.I.G.I., Inc., 138 A.D.2d 120, 529 N.Y.S.2d 804), and that there can be no recovery by Sullivan's estate based on the alleged unlawful sale of alcoholic beverages ( see......
  • Request a trial to view additional results
9 cases
  • Adkins v. Uncle Bart's, Inc., No. 970261.
    • United States
    • Supreme Court of Utah
    • January 18, 2000
    ...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 and dramshop actions are "wholly unrelated both as to scope and ¶ 38 The plaintiffs rely......
  • Digennaro v. Gates Police Dep't, 07-CV-6426 CJS
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • June 17, 2013
    ...Mar. 22, 1994) (emphasis added), aff'd, 220 A.D.2d 251, 632 N.Y.S.2d 98 (1st Dept. 1995); see also, Bongiorno v. D.I.G.I., Inc., 138 A.D.2d 120, 127, 529 N.Y.S.2d 804, 808 (2d Dept. 1988) (Indicating that the wrongful death statute "does not purport to create an independent, actionable wron......
  • Boudine v. Goldmaker, Inc., 2014-08480
    • United States
    • New York Supreme Court Appellate Division
    • July 1, 2015
    ...unknown at common law, which creates “ ‘an expansive cause of action’ ” and imposes strict liability (Bongiorno v. D.I.G.I., Inc., 138 A.D.2d 120, 127, 529 N.Y.S.2d 804, quoting 14 N.Y.S.3d 407Matalavage v. Sadler, 77 A.D.2d 39, 43, 432 N.Y.S.2d 103 ; see Mead v. Stratton, 87 N.Y. 493, 496–......
  • Sullivan v. Mulinos of Westchester Inc.
    • United States
    • New York Supreme Court Appellate Division
    • May 18, 2010
    ...826, 829, 507 N.Y.S.2d 616, 499 N.E.2d 870; Dunphy v. J & I Sports Enters., 297 A.D.2d 23, 748 N.Y.S.2d 595; Bongiorno v. D.I.G.I., Inc., 138 A.D.2d 120, 529 N.Y.S.2d 804), and that there can be no recovery by Sullivan's estate based on the alleged unlawful sale of alcoholic beverages ( see......
  • Request a trial to view additional results

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