Powers v. Niagara Mohawk Power Corp., No. 1

CourtNew York Supreme Court Appellate Division
Writing for the CourtWEISS; KANE; KANE
Citation129 A.D.2d 37,516 N.Y.S.2d 811
Decision Date11 June 1987
Docket NumberNo. 3,No. 1,No. 2
PartiesBarbara POWERS, as Administratrix of the Estate of Robert Merrill Kingsland, Deceased, Appellant, v. NIAGARA MOHAWK POWER CORPORATION et al., Defendants, and Glenville Beer Distributors, Ltd., Respondent. (Action) Cheryl A. GAAR, an Infant, by Donna J. GAAR, Her Parent and Natural Guardian, et al., Appellants, v. Donald J. RITZ et al., Defendants, and Glenville Beer Distributors, Ltd., Respondent. (Action) Vikki M. PEEK, an Infant, by Alfred J. PEEK, Her Parent and Natural Guardian, et al., Appellants, v. Donald J. RITZ et al., Defendants, and Glenville Beer Distributors, Ltd., Respondent. (Action)

Page 811

516 N.Y.S.2d 811
129 A.D.2d 37
Barbara POWERS, as Administratrix of the Estate of Robert
Merrill Kingsland, Deceased, Appellant,
v.
NIAGARA MOHAWK POWER CORPORATION et al., Defendants,
and
Glenville Beer Distributors, Ltd., Respondent. (Action No. 1.)
Cheryl A. GAAR, an Infant, by Donna J. GAAR, Her Parent and
Natural Guardian, et al., Appellants,
v.
Donald J. RITZ et al., Defendants,
and
Glenville Beer Distributors, Ltd., Respondent. (Action No. 2.)
Vikki M. PEEK, an Infant, by Alfred J. PEEK, Her Parent and
Natural Guardian, et al., Appellants,
v.
Donald J. RITZ et al., Defendants,
and
Glenville Beer Distributors, Ltd., Respondent. (Action No. 3.)
Supreme Court, Appellate Division,
Third Department.
June 11, 1987.

Page 812

Grasso, Rodriguez, Putorti & Grasso (Michael E. Basile, of counsel), Schenectady, for appellant in Action No. 1.

Nicholas D. Morsillo, Schenectady, for appellants in Action Nos. 2 and 3.

Edward A. McMahon, Albany, for respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and HARVEY, JJ.

WEISS, Justice.

The instant actions were precipitated by an early morning vehicular accident on September

Page 813

22, 1983, when a van driven by defendant Donald J. Ritz struck a utility pole off the Lock 8 Access Road in the Town of Glenville, Schenectady County. Vikki M. Peek, Cheryl A. Gaar, Robert Merrill Kingsland and another person were passengers in the van. At approximately 6:30 P.M. the previous evening, the group stopped to buy beer at defendant Glenville Beer Distributors, Ltd. (Glenville Beer). All were under the legal age for purchasing liquor, which was 19 at that time (see, Alcoholic Beverage Control Law former § 65[1] ). 1 With funds contributed by the members of the group, Kingsland and Ritz went into Glenville Beer and purchased a quantity of beer. It is undisputed that Ritz and Kingsland were sober at this time. Thereafter, the group traveled to the City of Glens Falls, Warren County, and later back to Glenville, consuming the beer in the process. When the collision occurred, a high power tension line fell onto the van, fatally electrocuting Kingsland and severely burning Peek and Gaar. In the three separate actions that followed, plaintiffs asserted causes of action against Glenville Beer premised on a violation of the Dram Shop Act (General Obligations Law § 11-101) and common-law negligence as a result of the unlawful sale of beer to persons under the age of 19. After pretrial discovery was conducted, Glenville Beer moved for summary judgment dismissing the complaints against it. In granting the motion in its entirety, Supreme Court determined that the Dram Shop Act only provided a cause of action against a vendor who sold liquor to an intoxicated person, and did not provide a right of recovery for injuries resulting from the sale of liquor to a person who was not intoxicated at the time of the purchase. The court further dismissed the common-law negligence causes of action since the accident occurred at a location beyond the control of Glenville Beer. 132 Misc.2d 123, 503 N.Y.S.2d 516. Plaintiffs have appealed.

The principal issue presented on this appeal is whether the Dram Shop Act provides a cause of action against a vendor for injuries resulting from its sale of liquor to an underage person, even when such person is concededly sober at the time of sale. General Obligations Law § 11-101(1) provides that:

Any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling to or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication; and in any such action such person shall have a right to recover actual and exemplary damages (emphasis supplied).

Supreme Court construed the underscored phrase as restricting the statute's application to instances where the sale is made to an intoxicated person or a person actually or apparently under the influence of alcohol (see, Alcoholic Beverage Control Law former § 65[2] ). 2 We reach a different conclusion.

The purpose of the Dram Shop Act is to afford compensation to victims whose injuries emanate from the unlawful sale of alcoholic beverages (see, Smith v. Guli, 106 A.D.2d 120, 123,...

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16 practice notes
  • O'Rourke v. Chew, No. 06–28538.
    • United States
    • United States State Supreme Court (New York)
    • July 26, 2012
    ...A.D.2d 88, 577 N.Y.S.2d 329 [3d Dept 1991], appeal dismissed79 N.Y.2d 977, 583 N.Y.S.2d 195 [1992];Powers v. Niagara Mohawk Power Corp., 129 A.D.2d 37, 516 N.Y.S.2d 811 [3d Dept 1987] ). An injured party who has procured the alcoholic beverage for the person whose intoxication allegedly cau......
  • Conrad v. Beck-Turek, Ltd., Inc., No. 93 CV 0610 (BDP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 10, 1995
    ...See Mitchell v. Shoals, 19 N.Y.2d 338, 341, 227 N.E.2d 21, 23, 280 N.Y.S.2d 113, 116 (1967); Powers v. Niagara Mohawk Power Corporation, 516 N.Y.S.2d 811, 129 A.D.2d 37 (A.D. 3 Dept.1987). The injured person, however, "must play a much more affirmative role than that of drinking companion t......
  • Dodge v. Victory Markets Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • December 30, 1993
    ...113, 227 N.E.2d 21; Slocum v. D's & Jayes Val. Rest. & Cafe, 182 A.D.2d 981, 582 N.Y.S.2d 544; Powers v. Niagara Mohawk Power Corp., 129 A.D.2d 37, 41, 516 N.Y.S.2d 811; Vandenburg v. Brosnan, 129 A.D.2d 793, 794, 514 N.Y.S.2d 784; affd. 70 N.Y.2d 940, 524 N.Y.S.2d 672, 519 N.E.2d 618). The......
  • Sheehy v. Big Flats Community Day, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • May 12, 1988
    ...where an underage drinker is involved; a social host, for example, may now be held liable ( see, Powers v. Niagara Mohawk Power Corp., 129 A.D.2d 37, 41, 516 N.Y.S.2d By enacting this statute, the Legislature has provided relief similar to that now sought by plaintiffs under Penal Law forme......
  • Request a trial to view additional results
16 cases
  • O'Rourke v. Chew, No. 06–28538.
    • United States
    • United States State Supreme Court (New York)
    • July 26, 2012
    ...A.D.2d 88, 577 N.Y.S.2d 329 [3d Dept 1991], appeal dismissed79 N.Y.2d 977, 583 N.Y.S.2d 195 [1992];Powers v. Niagara Mohawk Power Corp., 129 A.D.2d 37, 516 N.Y.S.2d 811 [3d Dept 1987] ). An injured party who has procured the alcoholic beverage for the person whose intoxication allegedly cau......
  • Conrad v. Beck-Turek, Ltd., Inc., No. 93 CV 0610 (BDP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 10, 1995
    ...See Mitchell v. Shoals, 19 N.Y.2d 338, 341, 227 N.E.2d 21, 23, 280 N.Y.S.2d 113, 116 (1967); Powers v. Niagara Mohawk Power Corporation, 516 N.Y.S.2d 811, 129 A.D.2d 37 (A.D. 3 Dept.1987). The injured person, however, "must play a much more affirmative role than that of drinking companion t......
  • Dodge v. Victory Markets Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • December 30, 1993
    ...113, 227 N.E.2d 21; Slocum v. D's & Jayes Val. Rest. & Cafe, 182 A.D.2d 981, 582 N.Y.S.2d 544; Powers v. Niagara Mohawk Power Corp., 129 A.D.2d 37, 41, 516 N.Y.S.2d 811; Vandenburg v. Brosnan, 129 A.D.2d 793, 794, 514 N.Y.S.2d 784; affd. 70 N.Y.2d 940, 524 N.Y.S.2d 672, 519 N.E.2d 618). The......
  • Sheehy v. Big Flats Community Day, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • May 12, 1988
    ...where an underage drinker is involved; a social host, for example, may now be held liable ( see, Powers v. Niagara Mohawk Power Corp., 129 A.D.2d 37, 41, 516 N.Y.S.2d By enacting this statute, the Legislature has provided relief similar to that now sought by plaintiffs under Penal Law forme......
  • Request a trial to view additional results

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