Feenin v. Bombace Wine & Spirits, Inc.

• Citation: 188 A.D.3d 1001,136 N.Y.S.3d 387
• Decision Date: 18 November 2020
• Docket Number: Index No. 716753/17,2018–13898
• Parties: ESTATE OF Tammy Colleen FEENIN, etc., et al., appellants, v. BOMBACE WINE & SPIRITS, INC., etc., et al., respondents, et al., defendants.
• Court: New York Supreme Court Appellate Division

188 A.D.3d 1001

136 N.Y.S.3d 387

ESTATE OF Tammy Colleen FEENIN, etc., et al., appellants,

v.BOMBACE WINE & SPIRITS, INC., etc., et al., respondents, et al., defendants.

2018–13898

Index No. 716753/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—June 29, 2020

November 18, 2020

The Mead Law Firm, P.C., Astoria, N.Y. (Wesley Mead appellant pro se of counsel), for appellants.

Harris Beach PLLC, New York, N.Y. (Peri A. Berger and Alexander M. Anolik of counsel), for respondents.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages pursuant to General Obligations Law § 11–101, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), entered October 9, 2018. The order, insofar as appealed from, granted that branch of the motion of the defendants Bombace Wine & Spirits, Inc., its employees, agents, and servants, and Donald A. Bombace which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them for failure to state a cause of action and denied that branch of the plaintiffs' cross motion which was pursuant to CPLR 3025(b) for leave to amend the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On December 3, 2016, Tammy Colleen Feenin, also known as Tammy Colleen Germonto, died (hereinafter the decedent). Thereafter, Wesley Mead, the decedent's son, as executor of the decedent's estate, individually, and as guardian of his three children, commenced this action, inter alia, to recover damages pursuant to General Obligations Law § 11–101, also known as the Dram Shop Act, based on allegations that the plaintiffs had been injured as the result of the illegal sale of alcohol by the defendants, including Bombace Wine & Spirits, Inc., its employees, agents, and servants, and Donald A. Bombace (hereinafter together the Bombace defendants). The amended complaint alleged that the decedent died on December 3, 2016, from extreme alcohol intoxication. The plaintiffs alleged that on several different dates between April 12, 2016, and November 28, 2016, the Bombace defendants, while they were aware or should have been aware that the decedent was in an intoxicated state and/or was a habitual drunkard, and that selling alcohol to her would cause her physical harm, sold alcohol to the decedent, contributing to her intoxication, and resulting in her death. The plaintiffs asserted eight causes of action, seeking to recover damages for: (1) violation of the Dram Shop Act, (2) common-law negligence, (3) violation of General Business Law § 349(a), (4) negligent hiring/supervision, (5) negligent infliction of emotional distress, (6) intentional infliction of emotional distress, (7) negligence per se, and (8) wrongful death.

The Bombace defendants moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them for failure to state a cause of action. The plaintiffs filed an amended verified complaint as of right while the motion was pending, and opposed the motion. Alternatively, the plaintiffs cross-moved, inter alia, pursuant to CPLR 3025(b) for leave to serve and file an amended complaint in the event the court determined that the amended complaint was not properly filed as of right. In reply, the Bombace defendants argued, inter alia, that the amended complaint made only cosmetic changes that failed to address the fundamental deficiencies in the original complaint.

In an order entered October 18, 2018, the Supreme Court, inter alia, granted that branch of the Bombace defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them and denied that branch of the plaintiffs' cross motion which was pursuant to CPLR 3025(b) for leave to file an amended complaint. The plaintiffs appeal.

As a threshold matter, we note that the plaintiffs properly amended their complaint as of right. The Bombace defendants' service of a motion, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them extended their time to answer (see CPLR 3211[f] ), and therefore extended the time in which the plaintiffs could amend their complaint as of right (see CPLR 3025[a] ; STS Mgt. Dev. v. New York State Dept. of Taxation & Fin., 254 A.D.2d 409, 410, 678 N.Y.S.2d 772 ). However, since the Bombace defendants, in effect, elected to apply their request for dismissal to the amended complaint, which superseded the original complaint, we consider their motion as directed against the amended complaint (see Sobel v. Ansanelli, 98 A.D.3d 1020, 1022, 951 N.Y.S.2d 533 ).

The Dram Shop Act "creates a cause of action in favor of a third party injured or killed by an intoxicated person, but it does not create a cause of action in favor of the intoxicated person" ( Wellcome v. Student Coop. of Stony Brook, 125 A.D.2d 393, 394, 509 N.Y.S.2d 816 ; see Reuter v. Flobo Enters., Ltd., 120 A.D.2d 722, 723, 503 N.Y.S.2d 67 ) or his or her estate (see Rutledge v. Rockwells of Bedford, 200 A.D.2d 36, 41, 613 N.Y.S.2d 179 ; Marsico v. Southland Corp., 148 A.D.2d 503, 505, 539 N.Y.S.2d 378 ). Thus, the first cause of action to recover damages under the Dram Shop Act fails to state a cause of action insofar as it is asserted on behalf of the decedent's estate, notwithstanding the addition in the amended complaint of the allegation that the decedent's intoxication at the time of the alleged illegal alcohol sale was "involuntary" (see generally People v. Williams, 186 A.D.2d 770, 770, 589 N.Y.S.2d 70 ; People v. Tocco, 138 Misc.2d 510, 516, 525 N.Y.S.2d 137 [Sup. Ct., Bronx County] ). Further, because the decedent, were she alive, would not possess a viable cause of action against the Bombace defendants to recover damages for injuries sustained as a result of her own intoxication, her estate possesses no viable cause of action to recover damages for wrongful death (see EPTL 5–4.1 ; Lyons v. Tiedemann, 135 A.D.2d 509, 510–511, 522 N.Y.S.2d 159 ).

Mead and his children, in their individual capacities, may assert a...