J.S.M. Contracting, Inc. v. Old Route 6 Pub, Ltd.
| Decision Date | 06 August 1985 |
| Parties | J.S.M. CONTRACTING INC and Jamison Corcoran, Plaintiffs, v. OLD ROUTE 6 PUB, LTD. and Rita Marino, Defendants. OLD ROUTE 6 PUB, LTD. and Rita Marino, Plaintiffs, v. DON LIEBERT, INC., Donald F. Liebert, Individually, Liebert Commercial, Inc., Associated Mutual Insurance Company, American Manufacturers Mutual Insurance Company and Continental Assurance Company, Defendants. |
| Court | New York Supreme Court |
Cerrato, Sweeney, Cohn, Stahl & Vaccaro, White Plains, for Michael crowley.
Burchetta, Goldsand, Cerussi & Spring, P.C., Carmel, for Old Route 6 Pub, Ltd. and Rita Marino.
Boeggeman, George & Jannace, P.C., White Plains, for J.S.M. Contracting Inc. and Jamison Corcoran.
O'Keeffe & Moloney, White Plains, for Don Liebert, Inc., Donald F. Liebert, individually and Liebert Commercial, Inc.
MacCartney, MacCartney & MacCartney, Nyack, for Associated Mut. Ins. Co.
Gerald G. Cowan, Hartsdale, for American Manufacturers Ins. Co.
This was originally a negligence action with a third and a fourth-party claim for indemnity. Although the motion papers do not fully reflect the fact, the three actions have been severed from each other. In the main action the plaintiff is seeking wrongful death damages arising from an automobile accident involving a car owned by the defendant JSM Contracting, Inc., and operated by the defendant Jamison Corcoran. It is alleged that Corcoran was intoxicated at the time of the accident. In the third-party action JSM and Corcoran seek whole or partial indemnity from Old Route 6 Pub, Ltd., and Rita Marino, who they claim sold intoxicating liquor to Corcoran. Their claim is based upon the Dram Shop Act (General Obligations Law, Sec. 11-101). In the fourth-party action Old Route 6 Pub and Marino seek indemnity from American Manufacturer's Mutual Insurance Company and others, on the theory that they (American) should have provided them with proper insurance against a Dram Shop claim.
In these now separate actions, Old Route 6 Pub and Rita Marino (Tavern owner) move to dismiss the indemnity claim of JSM and Corcoran for failure to state a cause of action, and American moves for summary judgment, dismissing the tavern owner's claim against it, and dismissing JSM and Corcoran's claim against the tavern owner.
These motions involve a determination of whether an intoxicated individual who causes injury can seek indemnity from one who may also be liable to the injured party under the Dram Shop Act.
The general rule in New York is that one who himself may be liable for damages for personal injury or wrongful death may seek indemnity in the way of contribution from anyone else who may also be liable for the same injury or death (CPLR 1401; Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288). The right of contribution exists regardless of whether or not the other tort-feasor has been sued by the injured plaintiff, and it applies not only between joint tort-feasors, but also to concurrent successive, independent, alternative and even intentional tort-feasors (Smith v. Guli, 106 A.D.2d 120, 123, 484 N.Y.S.2d 740). In our case, if, as alleged, the tavern owners contributed to the intoxication of Corcoran, they, along with JSM and Corcoran, would be liable for any injury caused by Corcoran in his intoxicated state (General Obligations Law, Sec. 11-101). Their liability would not be merely vicarious, but would stem from their independent wrongdoing of selling intoxicating liquor to an intoxicated person (King v. Ees Tee Rest., 36 A.D.2d 680, 319 N.Y.S.2d 791; Anderson v. Comardo, 107 Misc.2d 821, 823, 436 N.Y.S.2d 669). Consistent with the foregoing, it is well established that in a Dram Shop action the vendor...
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