O'Rourke v. Chew, No. 06–28538.

CourtUnited States State Supreme Court (New York)
Writing for the CourtTHOMAS F. WHELAN
Citation957 N.Y.S.2d 265,2012 N.Y. Slip Op. 51454,36 Misc.3d 1223
Docket NumberNo. 06–28538.
Decision Date26 July 2012
PartiesDevin K. O'ROURKE, Erin Jacobs, by her mother and natural guardian, Lynn Jacobs, Lynn Jacobs, individually, and Anthony Depaola, Plaintiffs, v. Kendra J. CHEW, Hess Mart, Inc., Hess Realty Corp. and Hess Corporation, Defendants.

36 Misc.3d 1223
957 N.Y.S.2d 265
2012 N.Y. Slip Op. 51454

Devin K. O'ROURKE, Erin Jacobs, by her mother and natural guardian, Lynn Jacobs, Lynn Jacobs, individually, and Anthony Depaola, Plaintiffs,
v.
Kendra J. CHEW, Hess Mart, Inc., Hess Realty Corp. and Hess Corporation, Defendants.

No. 06–28538.

Supreme Court, Suffolk County, New York.

July 26, 2012.


Rosenberg & Gluck, LLP, Holtsville, for Plaintiff O'Rourke1176 Portion Road.

Charles G. Eichinger & Associates, Islandia, for Plaintiffs Jacobs.


Gerald L. Lotto, Esq., Bohemia, for Plaintiff DePaola.

Kelly, Luglio & Arcuri, LLP, Deer Park, for Defendant Kendra J. Chew.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, for Defendants Hess.

THOMAS F. WHELAN, J.

ORDERED that this motion by defendants Hess Mart Inc. and Hess Corporation i/s/h/a Hess Realty Corp. for an order pursuant to CPLR 3212 granting summary judgment in their favor dismissing all claims and cross-claims as against them is determined herein.

This consolidated action arises from a single-car motor vehicle accident that occurred on September 13, 2006 at approximately 8:51 p .m. on Sound Avenue at or near its intersection with Horton Avenue in the Town of Riverhead, New York. Plaintiffs, Devin K. O'Rourke (O'Rourke), then 18 years of age, Erin Jacobs, then 16 years of age, and Anthony DePaola (DePaola), then 17 years of age, were passengers in a vehicle operated by the then 18–year–old Joseph S. Chew (Chew) that struck a utility pole. The vehicle was owned by Chew's grandmother, defendant Kendra J. Chew. Chew was taken to the hospital from the accident scene and was pronounced dead that evening at 9:30 p.m.

Earlier that evening, at approximately 6 p.m., the aforementioned plaintiffs, Chew, and non-party Lindsay Sadowski (the teenagers) had gathered at plaintiff O'Rourke's house and decided to buy beer from the Hess Mart on Route 58, in Riverhead, New York. Finding that they had insufficient money, plaintiff O'Rourke devised a plan to ask his mother for money to purchase soda at the Hess Mart and to apply the change from the purchase of soda to the purchase of beer. Plaintiff O'Rourke's mother gave money and Chew drove plaintiff DePaola and Lindsay Sadowski to the Hess Mart. Chew came out of the Hess Mart with two 12–packs of beer together with the soda. None of the plaintiffs were with Chew or observed him at the time that he allegedly purchased the beer. Chew, plaintiff DePaola and Lindsay Sadowski returned to plaintiff O'Rourke's house with the beer and soda. The teenagers eventually drank some of the beer. According to plaintiff DePaola they began drinking at plaintiff O'Rourke's house and according to plaintiff O'Rourke they began drinking later in a tree house of another teenager. According to plaintiffs O'Rourke and DePaola, Chew drank two to three beers prior to the accident. The accident occurred after they left the tree house and dropped off Lindsay Sadowski and were en route to Erin Jacob's house.

The plaintiff passengers in Chew's vehicle seek damages for injuries they sustained in the accident. Plaintiff, Lynn Jacobs, the mother of plaintiff Erin Jacobs, seeks to recover for the loss of services of her daughter as well as the hospital and medical expenses she incurred on her daughter's behalf. Each of the plaintiffs allege that employees of the Hess Mart sold two 12–packs of beer to the underage Chew in violation of General Obligations Law §§ 11–100 inasmuch as the employees knew or reasonably believed Chew to be underage and in violation of General Obligations Law § 11–101 (the Dram Shop Act). Continuing, the plaintiffs allege that Chew was visibly intoxicated, the employees knew that he was intoxicated, that Chew consumed the beer, and the Hess Mart employees contributed to Chew's intoxication.

Defendants Hess Mart Inc. and Hess Corporation i/s/h/a Hess Realty Corp. (Hess) answered and asserted a cross claim against defendant Kendra J. Chew for contribution and indemnification. By her answer, defendant Kendra J. Chew asserts a cross-claim against Hess for contribution and indemnification. The Court's computerized records indicate that the note of issue in this action was filed on September 30, 2011.

The circumstances surrounding the interface between Chew and defendant Hess on the date of the accident are described in the deposition testimony of various parties. The transcripts thereof, on which Hess relies, reveal that none of the plaintiffs were present in the Hess Mart or observed Chew at the time of his purchase of the beer at issue. While the deposition transcripts indicate that plaintiff DePaola was in the Hess Mart with Chew prior to the alleged sale and that he put two 12–packs of soda on the counter, DePaola left the store prior to the purchase of any beer. Chew then came out of the Hess Mart with two 12–packs of soda and two 12–packs of beer. It was, however, plaintiff DePaola, who carried the two 12–packs of beer from the door of the Hess Mart to the vehicle. The deposition testimony of the various parties reveal that on prior occasions Chew had used a “fake ID,” an expired driver's license, to purchase beer at the Hess Mart and at other times Hess employees allegedly recognized Chew and thus did not “card” him. The deposed Hess employees and former employee Muhammad Imran testified as to having no recollection of Chew or of the alleged sale.

Hess now moves for summary judgment dismissing all claims and cross-claims as against them on the grounds that there is no evidence that Chew consumed any alcohol prior to entering the Hess Mart nor evidence that he was visibly intoxicated at that time. Hess further asserts that there is no evidence that the employees at the Hess Mart knew or had reason to believe that Chew was under 21 years of age based on his prior use of false identification. Hess also asserts that plaintiff O'Rourke is precluded from recovering under the Dram Shop Act inasmuch as he admittedly contributed to the procurement of the beer by using the change from the money that his mother had given to purchase soda for the purchase of the beer. Hess further asserts that plaintiff Lynn Jacobs, the mother of plaintiff Erin Jacobs, cannot recover for the loss of services of her daughter because the Dram Shop Act does not provide for such recovery. In support of the motion, Hess submits, among other things, the pleadings, the deposition transcripts of plaintiffs O'Rourke, Erin Jacobs, and DePaola, of non-party witness Annette Amato, of Detective David Freeborn, and of Aman Khan and Khalid Khattak on behalf of Hess, the police accident report with notarized witness statements, and the Town of Riverhead Police Department Death Report for Chew, indicating that he was pronounced dead at 9:30 p.m. on September 13, 2006, and the attached toxicologic report from an examination on September 14, 2006 indicating a blood alcohol level of 0.03 percent.

Plaintiff Erin Jacobs and her mother Lynn Jacobs oppose the motion contending that the motion is untimely pursuant to CPLR 3212(a) and that, in any event, Hess failed to meet its burden of demonstrating that it did not sell alcohol to the underage Chew which caused his intoxication or impairment which has some reasonable or practical connection to Erin Jacobs' injuries. They note that Hess proffered no deposition testimony concerning Chew's purchase of beer and no video tape of the cash register from the date of the accident. Plaintiffs Jacobs also contend that Hess raised an issue of fact as to Chew's intoxication under the Dram Shop Act by submitting evidence that Chew's blood alcohol level was 0.03 percent such that he was per se legally impaired pursuant to Vehicle and Traffic Law § 1192–a. They further argue that the bar against recovery for loss of services only applies to the spouse or parent of the allegedly intoxicated tortfeasor. In support of their opposition, plaintiffs Jacobs submit the deposition transcript of non-party witness Lindsay Sandowski, the report of Hess's engineering experts on accident reconstruction, and the...

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