Murphy v. Cominsky

• Decision Date: 16 November 2012
• Citation: 100 A.D.3d 1493,954 N.Y.S.2d 343,2012 N.Y. Slip Op. 07788
• Parties: Caitlin G. MURPHY, Plaintiff–Respondent, v. Noah COMINSKY, Defendant, and Lawrence Vanderbogart, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 1493
954 N.Y.S.2d 343
2012 N.Y. Slip Op. 07788

Caitlin G. MURPHY, Plaintiff–Respondent,
v.
Noah COMINSKY, Defendant,
and
Lawrence Vanderbogart, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 16, 2012.

[954 N.Y.S.2d 344]

The Law Offices of Edward M. Eustace, White Plains (Christopher Yapchanyk of Counsel), for Defendant–Appellant.

Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (James W. Cunningham of Counsel), for Plaintiff–Respondent.

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.

MEMORANDUM:

[100 A.D.3d 1494]Plaintiff commenced this action seeking damages for injuries she sustained when her face was bitten by a dog during a party at which alcohol, furnished by defendants, was served. The party was hosted by a minor (host) while his parents were out of town, and the dog belonged to the host's family. For her first cause of action against Lawrence Vanderbogart (defendant), plaintiff alleged that defendant violated General Obligations Law §§ 11–100 and 11–101 (Dram Shop Act) by providing alcohol to minors. Plaintiff further alleged that, as a result of their intoxication, the minors attending the party became rowdy, thereby agitating the dog and causing it to bite plaintiff, and that, as a result of the host's intoxication, he failed to exercise a reasonable degree of care with respect to the dog and the dangers it posed to the guests. In her second cause of action against defendant, plaintiff alleged that he was negligent in providing alcohol to minors. Defendant moved to dismiss the complaint against him on the ground that it failed to state a cause of action ( seeCPLR 3211[a][7] ), and Supreme Court denied the motion.

Defendant contends that because plaintiff may recover for injuries sustained as a result of a dog bite only under a theory of strict liability ( see e.g. Petrone v. Fernandez, 12 N.Y.3d 546, 550, 883 N.Y.S.2d 164, 910 N.E.2d 993), the court erred in denying his motion. We conclude that the court properly denied defendant's motion to dismiss the first cause of action against him, alleging that he violated the Dram Shop Act. New York's Dram Shop Act affords a person injured “by reason of the intoxication” of another person an independent cause of action against the party that unlawfully sold, provided or assisted in procuring alcoholic beverages for such intoxicated person (General Obligations Law §§ 11–100[1]; 11–101[1] ). The statute requires only “some reasonable...