Marsico v. Southland Corp.

• Court: New York Supreme Court Appellate Division
• Writing for the Court: Before THOMPSON
• Citation: 539 N.Y.S.2d 378,148 A.D.2d 503
• Parties: Andrew MARSICO, etc., Appellant, v. SOUTHLAND CORPORATION d/b/a "7/11" and/or "Seven-Eleven" Defendant-Respondent Second Third-Party Plaintiffs, Patrick P. Viviano, etc. et al., Defendants-Respondents Third-Party Plaintiffs, The County of Nassau, Defendant-Respondent, Peter Brown, Third-Party Defendant and Second Third-Party Defendant.
• Decision Date: 13 March 1989

Page 378

539 N.Y.S.2d 378 148 A.D.2d 503 Andrew MARSICO, etc., Appellant,
v.
SOUTHLAND CORPORATION d/b/a "7/11" and/or "Seven-Eleven"
Defendant-Respondent Second Third-Party Plaintiffs,
Patrick P. Viviano, etc. et al., Defendants-Respondents
Third-Party Plaintiffs,
The County of Nassau, Defendant-Respondent,
Peter Brown, Third-Party Defendant and Second Third-Party Defendant. Supreme Court, Appellate Division,
Second Department. March 13, 1989.

Page 379

Shayne, Dachs, Stanisci & Corker, Mineola (Jonathan A. Dachs, on the brief), for appellant.

Edward T. O'Brien, County Atty., Mineola (Patricia M. Carroll, of counsel), for defendant-respondent, County of Nassau, and third-party defendant.

Curtis, Zaklukiewicz, Vasile & Devine, Merrick (Paul S. Devine, of counsel; Eugene Patrick Devany, on the brief), for defendants-respondents third-party plaintiffs.

Before THOMPSON, J.P., and LAWRENCE, RUBIN and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages under General Obligations Law § 11-101 (Dram Shop Act) and for wrongful death, the plaintiff appeals from so much of a judgment of the Supreme Court, Nassau County (Levitt, J.), dated April 6, 1987, as dismissed the complaint.

ORDERED that the judgment is modified by (1) adding to the first decretal paragraph after the words "so much of" the words "the first, second and third causes of action of the"; (2) deleting the third decretal paragraph and substituting therefor a provision dismissing, on the court's own motion, so much of the first, second and third causes of action asserted against the defendant Southland Corporation d/b/a "7/11" and/or "SEVEN-ELEVEN" as sought compensatory or punitive damages based upon an allegation of a violation of the General Obligations Law § 11-101 (Dram Shop Act); (3) deleting the fourth decretal paragraph, and (4) deleting the fifth decretal paragraph; as so modified, the judgment is affirmed insofar as appealed from, with costs.

On June 17, 1984, at approximately 4:00 a.m., 17-year-old Todd Marsico allegedly lost control of his car and was killed when it struck a house and exploded. At that time the youth was allegedly intoxicated from consuming beer, which he had purchased at a "7-11" store owned by the defendant franchisor Southland Corporation d/b/a "7/11" and/or "SEVEN-ELEVEN" (hereinafter Southland) and operated by the defendants-franchisees Patrick and Roseann Viviano (hereinafter the Vivianos), and he was being pursued by a Nassau County police officer in a patrol car.

The lawsuit subsequently brought by the decedent's father alleged five causes of action. The first cause of action, on behalf of the father individually and against the defendants Southland and the Vivianos, sought compensatory and exemplary damages under General Obligations Law § 11-101 (Dram Shop Act) and Alcohol Beverage Control Law § 65. The second and third causes of action, on behalf of the decedent's estate as against the defendants Southland and the Vivianos, sought compensatory damages for the decedent's...