Gutierrez v. Devine

Decision Date01 February 2013
PartiesSamia GUTIERREZ, Plaintiff–Appellant, v. Pierce A. DEVINE, Kyle Tatum, Defendants, and Lutz Brothers, Inc., Defendant–Respondent.
CourtNew York Supreme Court — Appellate Division

103 A.D.3d 1185
958 N.Y.S.2d 566
2013 N.Y. Slip Op. 00650

Samia GUTIERREZ, Plaintiff–Appellant,
v.
Pierce A. DEVINE, Kyle Tatum, Defendants,
and
Lutz Brothers, Inc., Defendant–Respondent.

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

Feb. 1, 2013.


[958 N.Y.S.2d 567]


Campbell & Shelton LLP, Eden (R. Colin Campbell Of Counsel), for Plaintiff–Appellant.

Lippman O'Connor, Buffalo (Robert H. Flynn Of Counsel), for Defendant–Respondent.


PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.

MEMORANDUM:

Plaintiff commenced this negligence and Dram Shop action seeking to recover damages for injuries she sustained when the vehicle in which she was a passenger struck a tree. The vehicle was operated by defendant Pierce A. Devine. Devine, a minor, tested positive for alcohol after the accident, and was charged with operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192[3] ) and vehicular assault in the second degree (Penal Law § 120.03[1] ). Before the accident, defendant Kyle Tatum, Tatum's girlfriend, and plaintiff drove to a gas station/convenience store owned and operated by Lutz Brothers, Inc. (defendant), and Devine met them there. Tatum, who was 17 years old at the time, purchased beer from the store using false identification. The four minors then drove

[958 N.Y.S.2d 568]

to a beach on Lake Erie, where they drank beer for approximately two hours. When it started to rain, they dropped Tatum's car off at Devine's house, and drove in Devine's car to the home of Tatum's girlfriend to pick up a movie. The accident occurred when the group was driving back to Devine's house. Plaintiff appeals from an order that, inter alia, granted defendant's motion for summary judgment dismissing the second amended complaint against it. We affirm.

We note at the outset that, although the second amended complaint asserts a violation of General Obligations Law § 11–101, there is no claim or evidence that defendant sold alcohol to anyone who was visibly intoxicated at the time of the sale in violation of that statute ( see Williams v. TeDave Enters., 242 A.D.2d 861, 861, 662 N.Y.S.2d 913). The analysis is therefore limited to whether plaintiff has a viable claim under General Obligations Law § 11–100. That statute provides in relevant part that “[a]ny person who shall be injured in person ... by reason of the intoxication or impairment of ability of any person under the age of [21] years ... shall have a right of action to recover actual damages against any person who knowingly causes such intoxication or impairment of ability by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages ...

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    • United States
    • New York Supreme Court Appellate Division
    • 1 Febrero 2013
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