Gigliotti v. Byrne Dairy, Inc.

• Decision Date: 29 April 1998
• Citation: 249 A.D.2d 973,672 N.Y.S.2d 172
• Parties: , 1998 N.Y. Slip Op. 4001 Virginia GIGLIOTTI, Individually and as Mother and as Administratrix with limited letters of administration in the Estate of Joseph Olivadoti, Deceased, Appellant, v. BYRNE DAIRY, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 172

672 N.Y.S.2d 172

249 A.D.2d 973, 1998 N.Y. Slip Op. 4001

Virginia GIGLIOTTI, Individually and as Mother and as

Administratrix with limited letters of

administration in the Estate of Joseph

Olivadoti, Deceased, Appellant, v. BYRNE DAIRY, INC., Respondent.

Supreme Court, Appellate Division,

Fourth Department.

April 29, 1998.

Durr & Keinz by Donald Deinz, Utica, for Plaintiff-Appellant.

O'Shea, McDonald & Steven, L.L.P. by Timothy O'Shea, Rome, for Defendant-Respondent.

Before DENMAN, P.J., and PINE, WISNER, CALLAHAN and FALLON, JJ.

MEMORANDUM:

Plaintiff commenced this action individually and as administratrix of the estate of her son, who died as a result of a one-car accident when he collided with a utility pole. Plaintiff alleges that decedent was furnished alcohol unlawfully by defendant, became intoxicated, and lost control of the vehicle he was driving. Supreme Court properly granted defendant summary judgment dismissing the first cause of action, in which plaintiff seeks to recover damages for the injuries and pain suffered by decedent prior to his death (see, Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 635, 543 N.Y.S.2d 18, 541 N.E.2d 18). The court also properly granted defendant summary judgment dismissing the second and third causes of action, in which plaintiff seeks to recover medical and funeral expenses, as well as loss of services.

Although an intoxicated infant has no cause of action predicated on a violation of the Dram Shop Act, "the infant's parents may sue individually under the Dram Shop Act as parties suffering a loss which resulted from the injury of the intoxicated person" (Reuter v. Flobo Enters., 120 A.D.2d 722, 723, 503 N.Y.S.2d 67; see, General Obligations Law § 11-101[4] ). The statute allows an infant's parents to sue as persons injured in "means of support" (General Obligations Law § 11-100[1] ). The party seeking to recover for an injury in means of support, however, has the burden to show that decedent had a legal duty or had undertaken an obligation to support his parent (see, Scheu v. High-Forest Corp., 129 A.D.2d 366, 370, 517 N.Y.S.2d 798). Here, it is undisputed that decedent was 17 years old at the time of the accident, and there is no evidence that he supported plaintiff or that she anticipated his support in the future (see, Marsico v. Southland Corp., 148 A.D.2d 503, 504-505, 539 N.Y.S.2d 378; cf., Raynor v. C.G.C. Grocery Corp., 159 A.D.2d 463, 552 N.Y.S.2d 316). The cause of action...