Fowler v. Taffe
| Decision Date | 01 October 1990 |
| Parties | Richard FOWLER, Plaintiff, v. Thomas TAFFE and Christopher Renzulli, Defendants and Third Party Plaintiffs. Frank's Continental Cookery, Inc., d/b/a Country Club Cafe, Third Party Defendant. |
| Court | New York Supreme Court |
Arthur R. Calger, White Plains, for plaintiff.
Andrew Risoli, New York City, for defendants/third party plaintiffs.
Duncan B. Hume, White Plains, for third party defendant.
The question posed by this motion to dismiss the third party complaint is whether the owner and operator of a motor vehicle who are sued by a plaintiff pedestrian struck by said vehicle may seek contribution from a tavern that allegedly violated the Dram Shop Act (General Obligations Law, Sections 11-101) by illegally selling liquor to the plaintiff, thereby causing him to wander into the roadway. This appears to be a question of first impression.
In J.S.M. Contr. v. Old Route 6 Pub, 129 Misc.2d 604, 493 N.Y.S.2d 930, (Sup.Ct. West Co.1985) (curiously not cited by either side here) it was held that a defendant driver or the owner of his vehicle may claim contribution from a third party defendant tavern on the theory that the tavern's violation of the Dram Shop Act caused the defendant driver to become intoxicated and thereby strike plaintiff. However, that case is clearly distinguishable from the instant one. There, the defendant driver's intoxication would be no defense to the plaintiff's claim, but the public policy of discouraging the unlawful sale of intoxicants would be served by making the illegal seller share with the voluntarily intoxicated person the social consequence of injury inflicted on an innocent person.
However, in the instant case the plaintiff's alleged intoxication, if proved, may serve either to vitiate his entire claim if it is found to be the sole proximate cause of the accident or at least result in a diminution of his recovery if it is found to have been a contributing proximate cause. Therefore, there is no possibility that the defendants here can be monetarily injured by the third party defendant's alleged wrongful sale.
Accordingly, the motion by the third party defendant to dismiss the third party complaint is granted.
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...of a motor vehicle who is sued by an intoxicated plaintiff/pedestrian, injured by the driver of such vehicle. (see Fowler v. Taffe, 152 Misc.2d 343, 576 N.Y.S.2d 743; Woodbeck v. M. Caputo and Associates, 131 Misc.2d 321, 500 N.Y.S.2d 481). Despite finding, however, that being "cast in dama......
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...in the cases relied upon by the Supreme Court and the third-party defendants failed to recognize this possibility (see Fowler v Taffe, 152 Misc 2d 343, 344 [1990]; Woodbeck v Caputo & Assoc., 131 Misc 2d 321, 322-326 [1986]), we find those cases to be We hold, as other courts have, that whe......
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Ploskikh v. Vcherashansky
...the court finds that it has been embraced as a valid cause of action in the Second Department. For example, in Fowler v Taffe, 152 Misc 2d 343 (N.Y. Sup. Ct. 1990), the court states:"In action by pedestrian for injuries sustained when he was struck by motor vehicle, owner and operator of mo......
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Schoonover v. City of N.Y., Index No. 158781/2013
...contention that a commercial establishment is not a part of "the community" to be protected. Dorrian's also cites to Fowler v Taffe (152 Misc 2d 343 [Sup Ct, Bronx County 1990]) and Ploskikh v Vcherashansky (2017 NY Slip Op 32104[U] [Sup Ct, Kings County 2017]), two cases involving facts si......