Marsico v. Southland Corp.

Citation539 N.Y.S.2d 378,148 A.D.2d 503
PartiesAndrew 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 Date13 March 1989
CourtNew York Supreme Court Appellate Division

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 conscious pain and suffering and wrongful death based upon allegations, in pertinent part, of statutory violations of the General Obligations Law and common law negligence. The fourth and fifth causes of action, on behalf of the decedent's estate as against the County of Nassau, sought compensatory damages for the decedent's conscious pain and suffering and wrongful death based upon allegations that a reckless automobile chase by one of the County's police officers had contributed to the decedent's accident.

The defendants Vivianos moved for summary judgment, dismissing so much of the complaint asserted against them as sought damages under the Dram Shop Act and exemplary damages. The defendant Southland untimely cross moved for summary judgment dismissing, in their entirety, all three causes of action against it. By judgment dated April 6, 1987, the Supreme Court, Nassau County dismissed the complaint as against all the defendants, including the non-moving defendant, County of Nassau.

On appeal, the plaintiff essentially argues that the Supreme Court erred by dismissing each of his five causes of action.

As to the allegations in the first cause of action involving the alleged violation of the Dram Shop Act and exemplary damages, we agree with the Supreme Court that the plaintiff has failed to raise a triable issue of fact as to his entitlement to any damages for an alleged violation of the statute. Specificall as to the plaintiff's individual claim, we find that the statute does not permit recovery for mental distress suffered by the parent (see, Scheu v. High Forest Corp., 129 A.D.2d 366, 517 N.Y.S.2d 798; cf., Winje v. Cavalry Veterans of Syracuse, 130 Misc.2d 580, 497 N.Y.S.2d 291, affd. 124 A.D.2d 1027, 508 N.Y.S.2d 768), nor projected future means of support by the decedent, who, as in this case, had not contributed to his parents' support, and who had no legal duty to assume such a responsibility (see, Scheu v. High Forest Corp., 129 A.D.2d 366, 517 N.Y.S.2d 798, supra; cf., Valicenti v. Valenze, 108 A.D.2d 300, 488 N.Y.S.2d 834, mod. on other grounds 68 N.Y.2d 826, 507 N.Y.S.2d 616, 499 N.E.2d 870 [involving the loss of a spouse] ). Moreover, funeral expenses have been classified as "means of support" damages, which cannot be recovered by a parent individually, absent a showing that "the parent is not possessed of...

To continue reading

Request your trial
17 cases
  • Fried v. Jacob Holding, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • August 7, 2013
    ...absence of compliance with CPLR 2215 and 2103 ( see Bucceri v. Frazer, 297 A.D.2d 304, 306, 746 N.Y.S.2d 185;Marsico v. Southland Corp., 148 A.D.2d 503, 506, 539 N.Y.S.2d 378;Fortanasce v. Meyrowitz, 141 A.D.2d 606, 606, 529 N.Y.S.2d 993;Vanek v. Mercy Hosp., 135 A.D.2d 707, 707–708, 522 N.......
  • Feenin v. Bombace Wine & Spirits, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • November 18, 2020
    ...N.Y.S.2d 67 ) or his or her estate (see Rutledge v. Rockwells of Bedford, 200 A.D.2d 36, 41, 613 N.Y.S.2d 179 ; Marsico v. Southland Corp., 148 A.D.2d 503, 505, 539 N.Y.S.2d 378 ). Thus, the first cause of action to recover damages under the Dram Shop Act fails to state a cause of action in......
  • Currie v. Wilhouski
    • United States
    • New York Supreme Court
    • January 27, 2011
    ...grant summary judgment, sua sponte, to a party absent a motion by some other party addressed to the specific issues ( see, Marsico v. Southland Corp., 148 A.D.2d 503;Conroy v. Swartout, 135 A.D.2d 945, 946–947;Andriano v. Caronia, 117 A.D.2d 640, 642–643;Jillsunan Corp. v. Wallfrin Indus., ......
  • Stanley Tulchin Associates, Inc. v. Vignola
    • United States
    • New York Supreme Court — Appellate Division
    • September 21, 1992
    ...N.E.2d 288). Further, no cross motion was made complying with the notice provisions of CPLR 2215 and 2103 (see, Marsico v. Southland Corp., 148 A.D.2d 503, 539 N.Y.S.2d 378; Vanek v. Mercy Hosp., 135 A.D.2d 707, 522 N.Y.S.2d 607; Morabito v. Champion Swimming Pool Corp., 18 A.D.2d 706, 236 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT