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

CourtUnited States State Supreme Court (New York)
Writing for the CourtMERCURE
Citation503 N.Y.S.2d 516,132 Misc.2d 123
PartiesBarbara POWERS, as Administratrix of the Estate of Robert Merrill Kingsland, Deceased, Plaintiff, v. NIAGARA MOHAWK POWER CORPORATION, Glenville Beer Distributors, Ltd., and Donald J. Ritz, Defendants. ActionCheryl A. GAAR, an infant, by Donna J. GAAR, her Parent and Natural Guardian and Donna J. Gaar, Individually, Plaintiffs, v. Donald J. RITZ, Glenville Beer Distributors, Ltd., and Niagara Mohawk Power Corporation, Defendants. ActionVikki M. PEEK, an infant, by Alfred J. PEEK, her Parent and Natural Guardian and Alfred J. Peek, Individually, Plaintiffs, v. Donald J. RITZ, Glenville Beer Distributors, Ltd., and Niagara Mohawk Power Corporation, Defendants. Action
Decision Date30 May 1986
Docket NumberNo. 1,No. 2,No. 3

Page 516

503 N.Y.S.2d 516
132 Misc.2d 123
Barbara POWERS, as Administratrix of the Estate of Robert
Merrill Kingsland, Deceased, Plaintiff,
v.
NIAGARA MOHAWK POWER CORPORATION, Glenville Beer
Distributors, Ltd., and Donald J. Ritz,
Defendants. Action No. 1
Cheryl A. GAAR, an infant, by Donna J. GAAR, her Parent and
Natural Guardian and Donna J. Gaar, Individually, Plaintiffs,
v.
Donald J. RITZ, Glenville Beer Distributors, Ltd., and
Niagara Mohawk Power Corporation, Defendants. Action No. 2
Vikki M. PEEK, an infant, by Alfred J. PEEK, her Parent and
Natural Guardian and Alfred J. Peek, Individually,
Plaintiffs,
v.
Donald J. RITZ, Glenville Beer Distributors, Ltd., and
Niagara Mohawk Power Corporation, Defendants. Action No. 3
Supreme Court, Schenectady County.
May 30, 1986.

Page 517

Edward A. McMahon, Albany, for defendant Glenville Beer Distributors, ltd.

Grasso, Rodriguez, Putorti & Grasso, Schenectady, for plaintiff in Action No. 1.

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

DECISION

MERCURE, Justice.

Defendant Glenville Beer Distributors, Ltd. (hereafter Glenville) moves for summary judgment dismissing each of the causes of action pleaded against it in each of the complaints herein. In support of the motion, movant has come forward with uncontroverted evidence of the following. In the late afternoon of September 21, 1983, Robert Kingsland (plaintiff's decedent in action no. 1), Cheryl Gaar (plaintiff in action no. 2), Vikki Peek (plaintiff in action no. 3), and Robert Coon (a non-party) were passengers in a vehicle owned and operated by Donald J. Ritz (defendant in each of the actions). They drove to the store of defendant Glenville, and defendant Ritz and Robert Kingsland purchased beer. Neither were apparently or actually intoxicated or under the influence of alcohol at the time of the purchase. At the time, Ritz and Kingsland were both 18 years of age. With the exception of Ritz, each of the occupants of the van contributed to the cost of the beer. During the early morning hours of September 22, 1983, the vehicle was involved in a collision which at least indirectly caused the death of Kingsland and personal injury to Gaar and Peek. Of the foregoing, the only factual findings essential to determination of the motion are those relating to the actual purchase of the beer, the ages of Kingsland and Ritz and that they were sober at the time of the purchase of the beer from Glenville. Any other facts stated above are for informational purposes only and are not binding upon the parties to the actions.

The complaints each allege common-law negligence and statutory (General Obligations Law, sec 11-101, commonly known as the "Dram Shop Act") causes of action against Glenville. These causes of action shall be considered separately.

Page 518

THE DRAM SHOP ACT CAUSES OF ACTION

The threshold issue, apparently never directly addressed in a reported decision in this state, is whether the furnishing of alcoholic beverages to an individual of less than legal age (19 at the time of the occurrences forming the basis for the causes of action herein; see, Alcoholic Beverage Control Law, sec. 65, subd. 1), who was not actually or apparently under the influence of alcohol at the time of the sale forms a basis for civil liability under the provisions of section 11-101 of the General Obligations Law (subd. 1), which reads as follows:

Any...

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2 practice notes
  • McIsaac v. Monte Carlo Club, Inc.
    • United States
    • Supreme Court of Alabama
    • September 20, 1991
    ...see also, Sanders v. Officers Club of Connecticut, 196 Conn. 341, 493 A.2d 184 (1985); contra, Powers v. Niagara Mohawk Power Corp., 132 Misc.2d 123, 503 N.Y.S.2d 516 (N.Y.Sup.Ct.1986); Walz v. City of Hudson, 327 N.W.2d 120 (S.D.1982); Martin v. Heddinger, 373 N.W.2d 486 (Iowa In determini......
  • Powers v. Niagara Mohawk Power Corp., No. 1
    • United States
    • New York Supreme Court Appellate Division
    • June 11, 1987
    ...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 The principal issue presented on this appeal is whether the Dram Shop Act provides a cause of action agains......
2 cases
  • McIsaac v. Monte Carlo Club, Inc.
    • United States
    • Supreme Court of Alabama
    • September 20, 1991
    ...see also, Sanders v. Officers Club of Connecticut, 196 Conn. 341, 493 A.2d 184 (1985); contra, Powers v. Niagara Mohawk Power Corp., 132 Misc.2d 123, 503 N.Y.S.2d 516 (N.Y.Sup.Ct.1986); Walz v. City of Hudson, 327 N.W.2d 120 (S.D.1982); Martin v. Heddinger, 373 N.W.2d 486 (Iowa In determini......
  • Powers v. Niagara Mohawk Power Corp., No. 1
    • United States
    • New York Supreme Court Appellate Division
    • June 11, 1987
    ...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 The principal issue presented on this appeal is whether the Dram Shop Act provides a cause of action agains......

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