Johnson v. Plotkin

• Decision Date: 05 December 1991
• Parties: John JOHNSON et al., Plaintiffs, v. Samuel PLOTKIN, as Administrator of the Estate of Angelo P. Basso, Deceased, Defendant, and County of Sullivan et al., Respondents, and Town of Thompson, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 329

577 N.Y.S.2d 329

172 A.D.2d 88

John JOHNSON et al., Plaintiffs, v. Samuel PLOTKIN, as Administrator of the Estate of Angelo P.

Basso, Deceased, Defendant,

and

County of Sullivan et al., Respondents,

and

Town of Thompson, Appellant.

Supreme Court, Appellate Division,

Third Department.

Dec. 5, 1991.

Cook, Tucker, Netter & Cloonan, P.C. (Eric M. Kurtz, of counsel), Kingston, for appellant.

Goldstein & Stoloff (Richard A. Stoloff, of counsel), Monticello, for Kiamesha Concord, Inc., respondent.

Before CASEY, J.P., and WEISS, LEVINE, MERCURE and HARVEY, JJ. CASEY, Justice Presiding.

Appeal from an order of the Supreme Court (Williams, J.), entered September 27, 1990 in Sullivan County, which, inter alia, granted certain defendants' motions for summary judgment dismissing the complaint and cross claims against them.

This action arises out of a one-car accident in which the driver and one passenger were killed and a third occupant sustained serious injuries. Plaintiffs, who are the injured passenger and the administratrix of the deceased passenger, seek damages from the estate of the driver of the vehicle, Sullivan County, the Town of Thompson, and the operators of two facilities which serve alcoholic beverages (hereinafter defendants). Sullivan County moved for summary judgment and defendants cross-moved for similar relief. Supreme Court granted the motion and cross motions. In appealing, the Town argues that its cross claims against defendants were improperly dismissed.

The Town's cross claims for contribution against defendants are based upon the theory that plaintiffs' injuries are due at least in part to defendants' illegal sales of alcohol, so that defendants are subject to liability for compensatory damages under the Dram Shop Act (see, General Obligations Law § 11-101). The Town, which is alleged to have been negligent, is subject to liability for damages for the same injuries and, therefore, may claim contribution from defendants (see, CPLR 1401; Herrick v. Second Cuthouse, 100 A.D.2d 952, 475 N.Y.S.2d 91, affd. 64 N.Y.2d 692, 485 N.Y.S.2d 518, 474 N.E.2d 1186). The cross claims for contribution based upon allegations that defendants violated the Dram Shop Act are not dependent upon the theory of liability asserted by plaintiffs (see, Cresswell v. Warden, 164 A.D.2d 855, 856, 559 N.Y.S.2d 361). Accordingly, plaintiffs' failure to appeal from the dismissal of their Dram Shop causes of action against defendants does not preclude the Town from seeking reinstatement of its cross claims for contribution against defendants.

"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 [a] patron's intoxication * * * " (Fox v. Mercer, 109 A.D.2d 59, 60, 489 N.Y.S.2d 792 [citations omitted], but there can be no liability unless there has been an illegal sale of alcoholic beverages (Joly v. Northway Motor Car Corp., 132 A.D.2d 790, 791, 517 N.Y.S.2d 595). Defendants maintain that inasmuch as there is undisputed evidence in the record that the driver of the vehicle was not visibly intoxicated when he was at defendants' premises, there could be no illegal sales of alcoholic beverages. In Powers v. Niagara Mohawk Power Corp. (129 A.D.2d 37, 40, 516 N.Y.S.2d 811), this court held that "since 'persons under the age of 19' (now 21) and 'intoxicated persons' are separately classified (Alcoholic Beverage Control Law former § 65[1], [2], an underage person need not be intoxicated at the time of the purchase for the sale to be unlawful under the Dram Shop Act". The driver in this case was under age and there is evidence in the record that defendants sold alcoholic beverages to the driver. We conclude, therefore, that defendants were not entitled to summary judgment against the Town on the theory that, as a matter of law, no illegal sale occurred.

Although the underage driver's intoxication at the time of the sale is not relevant, intoxication at the time of the accident is a relevant factor because liability arises under the Dram Shop Act only when the injuries are caused "by any intoxicated person, or by reason of the intoxication of any person" (General Obligations Law § 11-101[1]. The record contains a report listing the deceased driver's blood alcohol content at .26%. At one time, the Vehicle and Traffic Law provided that a blood alcohol content above a certain level constituted prima facie evidence of intoxication in certain proceedings (see, People v. Leis, 13 A.D.2d 22, 213 N.Y.S.2d 138). Now, however, the Vehicle and Traffic Law provides for the separate and distinct crimes of driving while intoxicated (Vehicle and Traffic Law § 1192[3] and driving with a blood alcohol content of .10% or...