Kaufman v. Quickway, Inc.

• Decision Date: 08 June 2010
• Citation: 905 N.Y.S.2d 532,14 N.Y.3d 907,931 N.E.2d 516
• Parties: Joseph E. KAUFMAN, Individually and as Administrator of the Estate of Joseph D. Kaufman, Deceased, et al., Appellants, v. QUICKWAY, INC., et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

905 N.Y.S.2d 532

14 N.Y.3d 907

931 N.E.2d 516

Joseph E. KAUFMAN, Individually and as Administrator of the Estate of Joseph D. Kaufman, Deceased, et al., Appellants,

v.QUICKWAY, INC., et al., Respondents.

Court of Appeals of New York.

June 8, 2010.

Alexander J. Wulwick, New York City, and Duane C. Felton, Staten Island, for appellants.

Law Firm of Frank W. Miller, East Syracuse (Frank W. Miller of counsel), for respondents.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

In this Dram Shop Act action involving a convenience store's allegedly illegal sale of alcohol to a visibly intoxicated customer who later caused a fatal traffic accident, the Appellate Division reversed Supreme Court's order denying defendants' motion for summary judgment, granted the motion, and dismissed the complaint. The Appellate Division held that the store clerk's out-of-court statements to a State Trooper investigating the accident were not admissible under the

[931 N.E.2d 517, 905 N.Y.S.2d 533]

hearsay exception for prior inconsistent statements to rebut her later deposition testimony ( see Letendre v. Hartford Acc. & Indem. Co., 21 N.Y.2d 518, 524, 289 N.Y.S.2d 183, 236 N.E.2d 467 [1968]; cf. Nucci v. Proper, 95 N.Y.2d 597, 603, 721 N.Y.S.2d 593, 744 N.E.2d 128 [2001] ). We disagree. The supporting deposition prepared by the Trooper and signed by the witness under penalty of perjury contained numerous indicia of reliability justifying its admissibility under Letendre. And, as in Letendre, the store clerk was available for cross-examination. In addition, the statement was sufficient tocreate a triable issue regarding whether the driver was visibly intoxicated at the time of the alcohol sale ( see Alcoholic Beverage Control Law § 65[2]; General Obligations Law § 11-101).

Nevertheless, summary judgment was properly granted to defendants. Plaintiffs failed to create a triable issue to rebut defendants' prima facie evidence demonstrating that no reasonable or practical connection existed between the allegedly illegal sale of alcohol and the accident ( see Oursler v. Brennan, 67 A.D.3d 36, 43, 884 N.Y.S.2d 534 [4th Dept.2009], lv. granted 68 A.D.3d 1824, 891 N.Y.S.2d 301 [4th Dept.2009]; Schmidt v. Policella, 43 A.D.3d 1141, 1143, 842 N.Y.S.2d 537 [2d Dept.2007], lv. denied 9 N.Y.3d 817, 851 N.Y.S.2d 126, 881 N.E.2d 222 [2008] ).

Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22...