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