Matalavage v. Sadler

CourtNew York Supreme Court Appellate Division
Writing for the CourtTITONE; MOLLEN, P. J., and HOPKINS and MANGANO, JJ., concur in the opinion of TITONE
Citation432 N.Y.S.2d 103,77 A.D.2d 39
Decision Date06 October 1980
PartiesMark MATALAVAGE, an infant etc., Appellant-Respondent, v. Robert SADLER, d/b/a Maybrook Inn, Respondent; John Marshall et al., Respondents-Appellants.

Page 103

432 N.Y.S.2d 103
77 A.D.2d 39
Mark MATALAVAGE, an infant etc., Appellant-Respondent,
v.
Robert SADLER, d/b/a Maybrook Inn, Respondent;
John Marshall et al., Respondents-Appellants.
Supreme Court, Appellate Division, Second Department.
Oct. 6, 1980.

Page 104

Albert J. Emanuelli, White Plains, for appellant-respondent.

Finkelstein, Mauriello, Kaplan & Levine, P.C., Newburgh, (Howard Karger and Sheila Callahan, Newburgh, of counsel), for respondents-appellants.

Before MOLLEN, P. J., and HOPKINS, TITONE and MANGANO, JJ.

TITONE, Justice.

The issue is whether the infant child of an intoxicated person who is killed by reason of his intoxication, may institute a cause of action under section 11-101 of the General Obligations Law.

I. Facts

Mary Ann Paskey commenced the present action as "natural mother and guardian" of Mark Matalavage, and "Guardian and Administratrix of the Goods, Chattels and Credits" of the decedent (Mark Matalavage's father), against Robert Sadler, d/b/a Maybrook Inn, and John and Clara Marshall. Plaintiff alleged inter alia that the defendants were responsible to Mark, under section 11-101 of the General Obligations Law (commonly known as the Dram Shop Act or Civil Damages Act), for losses of companionship and comfort and for monetary support. Plaintiff also alleged that Sadler "was an employee, agent, and/or servant of John W. Marshall and Clara Marshall, his employer", and that John and Clara Marshall "operate, control and maintain" the Maybrook Inn bar and grill.

The circumstances underlying this action arose as follows: Defendants John and Clara Marshall are the owners of a two-family building in Maybrook, New York, in the first floor and cellar of which is located a bar and grill known as the Maybrook Inn. John Marshall owned and operated the Maybrook Inn pursuant to a certificate of doing business filed with the Orange County Clerk's office on September 21, 1967. Mr. Marshall operated the bar until 1974. From 1967 to 1974 he employed Robert Sadler as a part-time bartender and Maud Gleason as a barmaid. In 1974 Marshall closed the bar and grill. However, he neglected to cancel his certificate of doing business.

In January, 1975 Sadler re-opened the bar and grill, using Maybrook Inn as its name. Sadler, in September of 1976, entered into a written lease agreement for the bar and grill with Marshall. Sadler continued as bartender and Maud Gleason remained as barmaid of the Inn. Although

Page 105

Sadler applied for his own liquor license, he failed to file a certificate of doing business as required by section 130 of the General Business Law.

At approximately 10 P.M. on November 12, 1976, William Matalavage entered the Maybrook Inn. During that evening and the early hours of the next morning he consumed a quantity of draft beer served by Sadler. Matalavage left the bar at about 4 A.M. and thereafter entered his automobile. After traveling a short distance he struck a telephone pole and died instantly. Surviving Matalavage were his son Mark, born on January 6, 1962, whom he was apparently supporting, and his divorced wife, Mary Ann Paskey.

After issue was joined in the present action, defendants Marshall made a motion for summary judgment. Special Term (FERRARO, J.) denied this motion, with leave to renew after examinations before trial.

After the examinations, the Marshalls again moved for summary judgment. The court thereupon dismissed the complaint, stating that section 11-101 of the General Obligations Law "does not create a right of action in favor of the party whose intoxication has resulted from the illegal sale of liquor and, accordingly, his administrator is also not vested with any such cause of action by EPTL 5-4.1." I disagree with such reasoning and determination.

Special Term misperceived the thrust of plaintiff's complaint. Notwithstanding the partially inaccurate title of the case ("Mary Ann Paskey * * * Administratrix of the Goods, Chattels and Credits of William J. Matalavage, Deceased"), for all intents and purposes the action was brought on behalf of the decedent's infant son and not on behalf of the decedent's estate. The issue presented before Special Term, and on appeal, is whether the child of one who is killed due to self-induced intoxication has a cause of action under the Dram Shop Act.

II. Statutory History

The origin of the current Dram Shop Act, embodied in section 11-101 of the General Obligations Law, is found in the excise law of 1857 (L.1857, ch. 628)...

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27 practice notes
  • Bongiorno v. D.I.G.I., Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • June 20, 1988
    ...Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 264, 11 N.E.2d 902; Lyons v. Tiedemann, 135 A.D.2d 509, 522 N.Y.S.2d 159; Matalavage v. Sadler, 77 A.D.2d 39, 432 N.Y.S.2d 103). In any event, the substantive allegations contained in the complaint are entirely consistent with, and reasonably const......
  • McIsaac v. Monte Carlo Club, Inc.
    • United States
    • Supreme Court of Alabama
    • September 20, 1991
    ...of public burdens.' " James v. Page 324 Brewton Motel Management, Inc., 570 So.2d 1225, 1229 (Ala.1990), citing Matalavage v. Sadler, 77 A.D.2d 39, 432 N.Y.S.2d 103 We conclude, based on these prior interpretations, that § 6-5-71 is penal in nature and that its purpose is to punish the owne......
  • Valicenti v. Valenze
    • United States
    • New York Supreme Court Appellate Division
    • May 9, 1985
    ...act through its imposition of strict liability (see Wright v. Sunset Recreation, 91 A.D.2d 701, 457 N.Y.S.2d 606; Matalavage v. Sadler, 77 A.D.2d 39, 43, 432 N.Y.S.2d 103; Mitchell v. The Shoals, Inc., 26 A.D.2d 78, 79, 271 N.Y.S.2d 137, affd. 19 N.Y.2d 338, 280 N.Y.S.2d 113, 227 N.E.2d 21)......
  • Adamy v. Ziriakus, No. 1
    • United States
    • New York Supreme Court Appellate Division
    • May 30, 1997
    ...of an intoxicated person when they were deprived of their means of support as a result of [the] intoxication" (Matalavage v. Sadler, 77 A.D.2d 39, 43, 432 N.Y.S.2d 103 [emphasis deleted]; see, Coughlin v. Barker Ave. Assocs., 202 A.D.2d 622, 623, 609 N.Y.S.2d 646). Thus, in Bartlett v. Gran......
  • Request a trial to view additional results
27 cases
  • Bongiorno v. D.I.G.I., Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • June 20, 1988
    ...Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 264, 11 N.E.2d 902; Lyons v. Tiedemann, 135 A.D.2d 509, 522 N.Y.S.2d 159; Matalavage v. Sadler, 77 A.D.2d 39, 432 N.Y.S.2d 103). In any event, the substantive allegations contained in the complaint are entirely consistent with, and reasonably const......
  • McIsaac v. Monte Carlo Club, Inc.
    • United States
    • Supreme Court of Alabama
    • September 20, 1991
    ...of public burdens.' " James v. Page 324 Brewton Motel Management, Inc., 570 So.2d 1225, 1229 (Ala.1990), citing Matalavage v. Sadler, 77 A.D.2d 39, 432 N.Y.S.2d 103 We conclude, based on these prior interpretations, that § 6-5-71 is penal in nature and that its purpose is to punish the owne......
  • Valicenti v. Valenze
    • United States
    • New York Supreme Court Appellate Division
    • May 9, 1985
    ...act through its imposition of strict liability (see Wright v. Sunset Recreation, 91 A.D.2d 701, 457 N.Y.S.2d 606; Matalavage v. Sadler, 77 A.D.2d 39, 43, 432 N.Y.S.2d 103; Mitchell v. The Shoals, Inc., 26 A.D.2d 78, 79, 271 N.Y.S.2d 137, affd. 19 N.Y.2d 338, 280 N.Y.S.2d 113, 227 N.E.2d 21)......
  • Adamy v. Ziriakus, No. 1
    • United States
    • New York Supreme Court Appellate Division
    • May 30, 1997
    ...of an intoxicated person when they were deprived of their means of support as a result of [the] intoxication" (Matalavage v. Sadler, 77 A.D.2d 39, 43, 432 N.Y.S.2d 103 [emphasis deleted]; see, Coughlin v. Barker Ave. Assocs., 202 A.D.2d 622, 623, 609 N.Y.S.2d 646). Thus, in Bartlett v. Gran......
  • Request a trial to view additional results

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