Cresswell v. Warden
| Decision Date | 06 August 1990 |
| Citation | 559 N.Y.S.2d 361,164 A.D.2d 855 |
| Parties | Gary CRESSWELL, et al., Plaintiffs, v. John S. WARDEN, Defendant-Third-Party Plaintiff-Respondent, v. LANDMARK FOOD SERVICE, INC., etc., et al., Third-Party Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Congdon, Flaherty, O'Callaghan, Reid & Donlon, P.C., Garden City (Patricia W. Congdon and Carla C. Leone, of counsel), for third-party defendants-appellants.
Kelly, Rode, Kelly & Burke, Westbury (George J. Wilson, of counsel), for defendant third-party plaintiff-respondent.
Before BRACKEN, J.P., and BROWN, KUNZEMAN and KOOPER, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the third-party defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Brucia, J.), entered January 24, 1989, as denied that branch their motion which was for partial summary judgment dismissing the cause of action in the third-party complaint alleging a violation of General Obligations Law § 11-101.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On August 8, 1985, at about 10:00 P.M., the defendant third-party plaintiff John S. Warden visited the Cafe Royale in Syosset. After consuming some alcoholic beverages over a period of several hours, he suddenly attacked the proprietor. One of the police officers who responded to the scene was the plaintiff Gary Cresswell. During the early morning hours of August 9, 1985, Warden was taken to the hospital because of a head wound and, after being treated, abruptly ran away.
Later that same morning, the plaintiff Gary Cresswell responded to a radio call of a suspicious person on the Jericho Turnpike. When he arrived at the scene, he saw Warden, who was in the custody of a police officer, standing by the side of the road. When Officer Cresswell approached Warden to check his condition, Warden suddenly struck him in the face, knocking him backwards to the ground and rendering him unconscious for a short time.
Officer Cresswell and his wife commenced this action solely against the defendant Warden to recover damages for the personal injuries allegedly sustained by Officer Cresswell when he was struck by Warden. They did not assert any claim against Warden based upon his alleged consumption of alcoholic beverages.
By service of a third-party complaint, Warden impleaded Landmark Food Service, Inc. d/b/a Cafe Royale (hereinafter Landmark) and its President Kenneth J. Donisi, seeking contribution from them based ostensibly on the Dram Shop Act (see, General Obligations Law § 11-101). The third-party defendants moved for summary judgment dismissing the third party complaint on the ground, inter alia, that the Dram Shop Act does not create a cause of action in favor of intoxicated persons who cause injuries.
We find that the court properly granted summary judgment solely to the extent of...
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