Samela v. Post Rd. Entm't Corp.

• Decision Date: 21 November 2012
• Citation: 2012 N.Y. Slip Op. 07979,100 A.D.3d 857,954 N.Y.S.2d 603
• Parties: Alicia A. SAMELA, etc., respondent, v. POST ROAD ENTERTAINMENT CORP., et al., appellants.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 857

954 N.Y.S.2d 603

2012 N.Y. Slip Op. 07979

Alicia A. SAMELA, etc., respondent,

v.POST ROAD ENTERTAINMENT CORP., et al., appellants.

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

Nov. 21, 2012.

Havkins Rosenfeld Ritzert & Varriale, LLP, White Plains, N.Y. (Steven H. Rosenfeld and Carmen A. Nicolaou of counsel), for appellants.

Clark, Gagliardi & Miller, P.C., White Plains, N.Y. (Henry G. Miller, Lawrence T. D'Aloise, Jr., and Angela Morcone Giannini of counsel), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.

In an action pursuant to General Obligations Law §§ 11–100 and 11–101, inter alia, to recover damages for loss of support, the defendants appeal from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered January 24, 2012, which denied their motion for summary judgment dismissing the complaint in its entirety or, in the alternative, for summary judgment dismissing so much of the complaint as seeks to recover damages for loss of future support and services and for exemplary damages.

ORDERED that the order is affirmed, with costs.

Over the course of several hours on the evening of August 6, 2007, and the early morning of August 7, the plaintiff's 19–year–old son (hereinafter the decedent) consumed alcohol served to him at a bar owned by the defendants. While driving home from the bar in the early morning hours of August 7, 2007, the decedent was injured in an automobile accident, and later died of his injuries. The plaintiff commenced this action against the defendants, alleging violations of General Obligations Law §§ 11–100 and 11–101.

The defendants moved for summary judgment dismissing the complaint in its entirety or, in the alternative, dismissing so much of the complaint as seeks to recover damages for loss of future support and for exemplary damages. The defendants argued that the plaintiff could not establish her claim of damages in the form of actual damages and present and future support from the decedent, and could not establish a claim for exemplary damages. The Supreme Court denied the defendants' motion.

General Obligations Law § 11–100 provides for recovery of damages for injury caused by the intoxication of a person under the age of 21. General Obligations Law § 11–101(1) provides for a cause of action to recover actual and exemplary damages to any person injured “in person, property, means of support or otherwise” by the unlawful sale of alcohol to an intoxicated person, whether resulting in his death or not. Both statutes (hereinafter together the Dram Shop Act), provide that parents may commence an action for damages thereunder (General Obligations Law §§ 11–100[4]; 11–101[4] ).

In assessing a claim for loss of support under the Dram Shop Act, the jury can consider the support the decedent provided to the plaintiffs before his or her death, and evidence of the support the plaintiffs could reasonably have expected but for his or her death ( see Valicenti v. Valenze, 68 N.Y.2d 826, 507 N.Y.S.2d 616, 499 N.E.2d 870;Sullivan v. Mulinos of Westchester, Inc., 73 A.D.3d 1018, 901 N.Y.S.2d 663). A parent cannot recover actual damages for loss of support under the Dram Shop Act absent a showing that a child had a legal duty to support his parents or had undertaken an obligation to do so ( see McArdle v. 123 Jackpot, Inc., 51 A.D.3d 743, 858 N.Y.S.2d 692;McNeill v. Rugby Joe's, Inc., 272 A.D.2d 384, 707 N.Y.S.2d 483).

In support of their motion for summary judgment, the defendants submitted the plaintiff's deposition testimony, in which she testified, inter alia, that the decedent's father paid the balance of his college tuition not covered by a scholarship and that the plaintiff claimed the decedent as a dependent on her state tax returns for the three years preceding his death, thus indicating that she supported him. While the decedent gave the plaintiff cash for household expenses, the plaintiff could not provide an amount, or state that these contributions were made with any regularity. Based on this proffered testimony, the defendants met their initial prima facie burden by demonstrating that the plaintiff could not substantiate her claim to recover for loss of support ( see McArdle v. 123 Jackpot, Inc., 51 A.D.3d 743, 858 N.Y.S.2d 692;McNeill v. Rugby Joe's, 272 A.D.2d 384, 707 N.Y.S.2d 483).

However, the Supreme Court properly concluded that, in opposition, the plaintiff raised triable issues of fact regarding her claims for actual damages, and for...