Fox v. Mercer

CourtNew York Supreme Court Appellate Division
Writing for the CourtSCHNEPP
Citation489 N.Y.S.2d 792,109 A.D.2d 59
PartiesJanet F. FOX, Individually and as Parent and Natural Guardian of Michelle Fox, Kenneth Fox, Jr. and Christopher Fox, Minor Children and as Administratrix of the Estate of Kenneth W. Fox, Sr., Deceased, Respondent, v. Charles P. MERCER and Charles A. Wedel, d/b/a Goodtime Charley's, Appellants, Panorama Bowl, Inc., County of Monroe and Town of Greece, Defendants.
Decision Date04 June 1985

Page 792

489 N.Y.S.2d 792
109 A.D.2d 59
Janet F. FOX, Individually and as Parent and Natural
Guardian of Michelle Fox, Kenneth Fox, Jr. and Christopher
Fox, Minor Children and as Administratrix of the Estate of
Kenneth W. Fox, Sr., Deceased, Respondent,
v.
Charles P. MERCER and Charles A. Wedel, d/b/a Goodtime
Charley's, Appellants,
Panorama Bowl, Inc., County of Monroe and Town of Greece, Defendants.
Supreme Court, Appellate Division,
Fourth Department.
June 4, 1985.

Page 793

Harris, Beach, Wilcox, Rubin & Levey, Rochester (Douglas Foss, Rochester of counsel), for appellants.

Robert L. Brenna, Jr., Rochester, for respondent.

Before DILLON, P.J., and DOERR, DENMAN, BOOMER and SCHNEPP, JJ.

SCHNEPP, Justice.

Kenneth W. Fox, Sr., was killed in a single-car accident while driving in an alleged intoxicated condition and his widow brought this action on behalf of herself individually and their three children under the Dram Shop Act (General Obligations Law § 11-101) for damages suffered by reason of the loss of his society, companionship, support and maintenance. This action has been consolidated with a wrongful death action instituted against the County of Monroe and the Town of Greece. The Dram Shop defendants seek discovery of insurance policies on decedent's life, trust instruments, annuities, bank statements,

Page 794

documents concerning payment of death benefits, and other information relating to plaintiff's financial circumstances since the death of her husband and her current means of support. They appeal from the denial of their motion to compel disclosure of such information.

The narrow issue for our determination is whether the Dram Shop defendants are entitled to disclosure of this information in defense of plaintiffs' claim under the statute that they have been "injured in * * * means of support" (General Obligations Law § 11-101). In our view, defendants are seeking information which is not material and necessary in the defense of the Dram Shop action, does not pass the test of "usefulness and reason" and is not "sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable" (Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 406-407, 288 N.Y.S.2d 449, 235 N.E.2d 430). Disclosure of this information would have no bearing on the controversy since damages to plaintiffs' "means of support" should be measured as of the time of death and without regard to receipts from collateral sources.

The Dram Shop Act created a cause of action unknown at common law by allowing recovery against a tavern owner for injuries caused as a result of patron's intoxication (see, Mead v. Stratton et al., 87 N.Y. 493; Volans v. Owen, 74 N.Y. 526; Moyer v. Lo Jim Cafe, 19 A.D.2d 523, 240 N.Y.S.2d 277, affd 14 N.Y.2d 792, 251 N.Y.S.2d 30, 200 N.E.2d 212) and was enacted for the dual purposes of suppressing the sale and use of intoxicating liquor, and of protecting and providing a remedy for dependents and persons injured by the unlawful sale of liquor (Matalavage v. Sadler, 77 A.D.2d 39, 43, 432 N.Y.S.2d 103). Since its inception in 1873 (L.1873, ch. 646) the Dram Shop Act has given a right of action for injury to "means of support" and punitive damages. Thus, a means of recovering damages has been established for persons injured by reason of the intoxication of a dram shop's vendee. In the leading cases of Volans v. Owen, 74 N.Y. 526, supra and MEAD V. STRATTON, 87 N.Y. 493,1 supra the Court of Appeals considered the legislative intent underlying this statutory liability. Finding that the Legislature's purpose "was the protection of the dependent and helpless" (Volans v. Owen, supra, 74 N.Y., p. 530), the court limited the remedy created to those situations where the plaintiff could show that "his accustomed means of maintenance have been cut off or curtailed, or that he has been reduced to a state of dependence, by being deprived of the support which he had before enjoyed" (supra ). Mere diminution of income is not sufficient proof of damage "if the plaintiff, notwithstanding, has adequate means of maintenance, from accumulated capital or property, or his remaining income is sufficient for his support." (supra.) In Mead, which affirmed a judgment in favor of the plaintiff widow, the court softened its position somewhat, stating that a cause of action for injury to means of support lies "when the party is deprived of the usual means of maintenance, which he or she was accustomed to enjoy previously" (87 N.Y. 493, 496, supra ). Minor children also have been permitted to recover for injury to means of support arising from the death of a parent by reason of intoxication (Neu v. McKechnie, 95 N.Y. 632). These cases have never been overruled and are accepted as established jurisprudence (see, 3 NY Jur 2d, Alcoholic Beverages, § 130 but see, Valicenti v. Valenze, 108 A.D.2d 300, 488 N.Y.S.2d 834. 2

Page 795

In Sharpley v. Brown, 43 Hun. 374 relied upon by the defendants, it was held that post-death changes in circumstances, in that case the remarriage of the plaintiff two and one-half years after her first husband's death, were analogous to "accumulated capital or property" within the meaning of Volans and relevant to determining the extent of injury to her means of support (supra, p. 376). The court stated that "if, shortly after her first husband's death, she had come into the possession of such property as gave her an ample support, it seems to us * * * that this might have been shown upon the trial." (supra.) The Sharpley court recognized that its holding represented a departure from the rule that "actions for common-law injuries to the person the damages would not be diminished by the possession of...

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9 practice notes
  • Scalone v. Phelps Memorial Hosp. Center
    • United States
    • New York Supreme Court Appellate Division
    • December 7, 1992
    ...collateral sources could not be relied upon to reduce either the plaintiff's recovery or the defendant's liability (see, Fox v. Mercer, 109 A.D.2d 59, 63, 489 N.Y.S.2d 792; De Coste v. Champlain Valley Physicians Hosp., 147 A.D.2d 793, 795, 537 N.Y.S.2d 665). Furthermore, disclosure of info......
  • Bongiorno v. D.I.G.I., Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • June 20, 1988
    ...v. Kimmerle, 104 A.D.2d 242, 484 N.Y.S.2d 213, supra; Matalavage v. Sadler, 77 A.D.2d 39, 432 N.Y.S.2d 103, supra; Fox v. Mercer, 109 A.D.2d 59, 489 N.Y.S.2d 792, supra; see also, D'Amico v. Christie, 71 N.Y.2d 76, 83, 524 N.Y.S.2d 1, 518 N.E.2d 896; Mitchell v. The Shoals, Inc., 19 N.Y.2d ......
  • Blackburn, Inc. v. Harnischfeger Corp., No. 91-1031-K.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • August 29, 1991
    ...513, 522, 501 N.E.2d 830, 839 (1986); Hardware Mut. Cas. Co. v. Danberry, 234 Minn. 391, 48 N.W.2d 567, 570 (1951); Fox v. Mercer, 109 A.D.2d 59, 489 N.Y.S.2d 792, 799 n. 5 (App.1985); Jacobs v. General Accid. Fire & Life Ass. Corp., 14 Wis.2d 1, 109 N.W.2d 462, 464 (1961). See Restatement ......
  • Gaines Service Leasing Corp. v. Ashkenazy, No. 85-CV-4398(JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 30, 1986
    ...of New York State who was never physically present in the State conducting business with plaintiff on an individual basis." Id., 489 N.Y.S.2d at 792. He was, the state court found, subject to personal jurisdiction because the "performance of the guaranty would have been in this State." Id. ......
  • Request a trial to view additional results
9 cases
  • Scalone v. Phelps Memorial Hosp. Center
    • United States
    • New York Supreme Court Appellate Division
    • December 7, 1992
    ...collateral sources could not be relied upon to reduce either the plaintiff's recovery or the defendant's liability (see, Fox v. Mercer, 109 A.D.2d 59, 63, 489 N.Y.S.2d 792; De Coste v. Champlain Valley Physicians Hosp., 147 A.D.2d 793, 795, 537 N.Y.S.2d 665). Furthermore, disclosure of info......
  • Bongiorno v. D.I.G.I., Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • June 20, 1988
    ...v. Kimmerle, 104 A.D.2d 242, 484 N.Y.S.2d 213, supra; Matalavage v. Sadler, 77 A.D.2d 39, 432 N.Y.S.2d 103, supra; Fox v. Mercer, 109 A.D.2d 59, 489 N.Y.S.2d 792, supra; see also, D'Amico v. Christie, 71 N.Y.2d 76, 83, 524 N.Y.S.2d 1, 518 N.E.2d 896; Mitchell v. The Shoals, Inc., 19 N.Y.2d ......
  • Blackburn, Inc. v. Harnischfeger Corp., No. 91-1031-K.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • August 29, 1991
    ...513, 522, 501 N.E.2d 830, 839 (1986); Hardware Mut. Cas. Co. v. Danberry, 234 Minn. 391, 48 N.W.2d 567, 570 (1951); Fox v. Mercer, 109 A.D.2d 59, 489 N.Y.S.2d 792, 799 n. 5 (App.1985); Jacobs v. General Accid. Fire & Life Ass. Corp., 14 Wis.2d 1, 109 N.W.2d 462, 464 (1961). See Restatement ......
  • Gaines Service Leasing Corp. v. Ashkenazy, No. 85-CV-4398(JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 30, 1986
    ...of New York State who was never physically present in the State conducting business with plaintiff on an individual basis." Id., 489 N.Y.S.2d at 792. He was, the state court found, subject to personal jurisdiction because the "performance of the guaranty would have been in this State." Id. ......
  • Request a trial to view additional results

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