Dodge v. Victory Markets Inc.

CourtNew York Supreme Court — Appellate Division
Writing for the CourtMAHONEY
Citation606 N.Y.S.2d 345,199 A.D.2d 917
Decision Date30 December 1993
PartiesWarren L. DODGE, Individually and as Conservator of Christopher M. Dodge, Respondent, v. VICTORY MARKETS INC. et al., Appellants, et al., Defendants.

Page 345

606 N.Y.S.2d 345
199 A.D.2d 917
Warren L. DODGE, Individually and as Conservator of
Christopher M. Dodge, Respondent,
v.
VICTORY MARKETS INC. et al., Appellants, et al., Defendants.
Supreme Court, Appellate Division,
Third Department.
Dec. 30, 1993.

Page 347

Taylor, Schimpf & Matalavage (David R. Taylor, of counsel), Albany, for Victory Markets Inc., appellant.

Bohl, Della Rocca & Dorfman P.C. (John E. Dorfman, of counsel), Albany, for William Antelek, appellant.

Roemer & Featherstonhaugh (Matthew J. Kelly, of counsel), Albany, for respondent.

Before WEISS, P.J., and CARDONA, WHITE, MAHONEY and CASEY, JJ.

MAHONEY, Justice.

Appeals (1) from an order of the Supreme Court [199 A.D.2d 918] (Kahn, J.), entered March 2, 1993 in Albany County, which denied defendant Victory Markets Inc.'s motion for summary judgment dismissing the complaint against it, and (2) from an order of said court, entered January 22, 1993 in Albany County, which, inter alia, denied defendant William Antelek's cross motion for summary judgment dismissing the complaint against him.

On the evening of February 18, 1990, defendant Matthew F. Walsh, age 20, purchased a case of beer at a Great American Supermarket with pooled money while his friends, three other minors, including 18-year-old Christopher M. Dodge, waited in a parked car outside the store. After the purchase, the group drove around drinking the beer and ultimately ended up at the home of defendant William Antelek where Walsh garaged his all terrain vehicle (hereinafter ATV). The boys and others congregated in the Antelek kitchen and, after receiving Walsh's permission, began taking turns driving the ATV. On his second ride, Dodge, who all agree was intoxicated at the time, lost control of the vehicle and sustained severe injuries which left him in a persistent vegetative state. This occurrence furnished the occasion for the within action by plaintiff, Dodge's father, individually and as Dodge's conservator, against Great American, Walsh and Antelek. Liability was predicated variously on theories of common-law negligence, negligent entrustment of the ATV, violation of Alcoholic Beverage Control Law § 65 and violation of the Dram Shop Act (General Obligations Law § 11-101).

Following completion of discovery and the filing of a note of issue, plaintiff moved to amend his complaint. In addition to requesting substitution of defendant Victory Markets, the correct corporate entity for Great American, plaintiff sought to interpose a claim against Walsh's father, to assert a General Obligations Law § 11-100 claim against Victory, to expand the claim of negligent entrustment and to increase the ad damnum clause from $4 million to $10 million. Antelek opposed and cross-moved for summary judgment dismissing the complaint against him. During pendency of these applications, Victory also moved for summary judgment. Supreme Court denied both defendants' motions and, other than denying the ad damnum increase, granted plaintiff's motion to amend in its entirety. Victory and Antelek appeal.

Addressing first the merits of Victory's motion for summary judgment, we note initially that none of the causes of action alleged in the original complaint, either by plaintiff individually[199 A.D.2d 919] or on behalf of Dodge, can withstand a summary judgment motion. The common-law negligence claims interposed by plaintiff on Dodge's behalf fail not only because the uncontroverted evidence establishes that Dodge's accident occurred outside the area of Victory's control and several

Page 348

hours after the sale in question (see, e.g., Etu v. Cumberland...

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17 practice notes
  • Town of Verona v. Cuomo, No. 4624–13.
    • United States
    • United States State Supreme Court (New York)
    • June 27, 2014
    ...to be granted simply for the asking. There must be some demonstration of merit to the proposed amendment (see, Dodge v. Victory Markets, 199 A.D.2d 917, 919–920, 606 N.Y.S.2d 345 [3rd Dept., 1993] ; see also, Mathiesen v. Mead, 168 A.D.2d 736, 563 N.Y.S.2d 887 [3rd Dept., 1990] ). A motion ......
  • O'Rourke v. Chew, No. 06–28538.
    • United States
    • United States State Supreme Court (New York)
    • July 26, 2012
    ...with one's own money ( see Slocum v. D's & Jayes Val. Rest. & Café, Inc., 182 A.D.2d 981, 982, 582 N.Y.S.2d 544;Dodge v. Victory Mkts., 199 A.D.2d 917, 606 N.Y.S.2d 345 [3d Dept 1993]; Prunty v. Keltie's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354 [2d Dept 1990]; Campbell v. Step/Lind Rest.......
  • Humphrey v. Westchester Ltd. P'ship, No. 17-0885
    • United States
    • Supreme Court of West Virginia
    • May 21, 2019
    ...in that duty was for the jury to assess, along with consideration of the chain of causation.9 See Dodge v. Victory Markets Inc., 606 N.Y.S.2d 345, 348 (N. Y. App. Div. 1993) (permitting cause of action based on sale to intoxicated minor who negligently entrusted vehicle causing injury). It ......
  • Gutierrez v. Devine
    • United States
    • New York Supreme Court Appellate Division
    • February 1, 2013
    ...beverages, or for whom they were procured” ( id.;see Jacobs v. Amodeo, 208 A.D.2d 1171, 1172, 618 N.Y.S.2d 120;Dodge v. Victory Mkts., 199 A.D.2d 917, 919, 606 N.Y.S.2d 345). Further, “liability under General Obligations Law § 11–100 may be imposed only on a person who knowingly causes into......
  • Request a trial to view additional results
17 cases
  • Town of Verona v. Cuomo, No. 4624–13.
    • United States
    • United States State Supreme Court (New York)
    • June 27, 2014
    ...to be granted simply for the asking. There must be some demonstration of merit to the proposed amendment (see, Dodge v. Victory Markets, 199 A.D.2d 917, 919–920, 606 N.Y.S.2d 345 [3rd Dept., 1993] ; see also, Mathiesen v. Mead, 168 A.D.2d 736, 563 N.Y.S.2d 887 [3rd Dept., 1990] ). A motion ......
  • O'Rourke v. Chew, No. 06–28538.
    • United States
    • United States State Supreme Court (New York)
    • July 26, 2012
    ...with one's own money ( see Slocum v. D's & Jayes Val. Rest. & Café, Inc., 182 A.D.2d 981, 982, 582 N.Y.S.2d 544;Dodge v. Victory Mkts., 199 A.D.2d 917, 606 N.Y.S.2d 345 [3d Dept 1993]; Prunty v. Keltie's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354 [2d Dept 1990]; Campbell v. Step/Lind Rest.......
  • Humphrey v. Westchester Ltd. P'ship, No. 17-0885
    • United States
    • Supreme Court of West Virginia
    • May 21, 2019
    ...in that duty was for the jury to assess, along with consideration of the chain of causation.9 See Dodge v. Victory Markets Inc., 606 N.Y.S.2d 345, 348 (N. Y. App. Div. 1993) (permitting cause of action based on sale to intoxicated minor who negligently entrusted vehicle causing injury). It ......
  • Gutierrez v. Devine
    • United States
    • New York Supreme Court Appellate Division
    • February 1, 2013
    ...beverages, or for whom they were procured” ( id.;see Jacobs v. Amodeo, 208 A.D.2d 1171, 1172, 618 N.Y.S.2d 120;Dodge v. Victory Mkts., 199 A.D.2d 917, 919, 606 N.Y.S.2d 345). Further, “liability under General Obligations Law § 11–100 may be imposed only on a person who knowingly causes into......
  • Request a trial to view additional results

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