Sheehy v. Big Flats Community Day, Inc.

CourtNew York Supreme Court — Appellate Division
Writing for the CourtKANE
Citation137 A.D.2d 160,528 N.Y.S.2d 213
Decision Date12 May 1988
PartiesMargaret A. SHEEHY, et al., Appellants, v. BIG FLATS COMMUNITY DAY, INC., et al., Defendants, and American Legion Ernest Skinner Memorial Post 1612, Respondent.

Page 213

528 N.Y.S.2d 213
137 A.D.2d 160
Margaret A. SHEEHY, et al., Appellants,
v.
BIG FLATS COMMUNITY DAY, INC., et al., Defendants,
and
American Legion Ernest Skinner Memorial Post 1612, Respondent.
Supreme Court, Appellate Division,
Third Department.
May 12, 1988.

Page 214

Ziff, Weiermiller & Hayden (James B. Reed, of counsel), Elmira, for appellants.

Levene, Gouldin & Thompson (John J. Pollock and William S. Yaus, of counsel), Binghamton, for respondent.

Before KANE, WEISS, MIKOLL, YESAWICH and LEVINE, JJ.

KANE, Justice Presiding.

On the evening of June 24, 1983, plaintiff Margaret A. Sheehy (hereinafter Sheehy), then age 17, was struck by an automobile while crossing the public highway at the intersection of State Route 352 and River Street in the Town of Big Flats, Chemung County. She was proceeding from the premises of defendant Driscoll's Tavern, Inc. to the "Big Flats Community Days" celebration which was taking place across the road and was sponsored by defendant Big Flats Community Day, Inc. At the time of the accident Sheehy was intoxicated, and plaintiffs contend that earlier in the evening she had been served beer at a beer tent operated by defendant American Legion Ernest Skinner Memorial Post 1612 (hereinafter the Legion) at a time when she was intoxicated and under the then-legal drinking age of 19 (Alcoholic Beverage Control Law former § 65[1], as amended by L.1982, ch. 159, § 1).

The complaint in this action seeks recovery for personal injuries sustained by Sheehy and for expenses and loss of services sustained by her mother. Plaintiffs allege causes of action in common-law negligence, statutory negligence and a violation of General Obligations Law § 11-101(1) and (4) (hereinafter the Dram Shop Act). A motion for summary judgment resulted in dismissal of each cause of action in the complaint against the Legion, except for the mother's cause of action predicated on the Dram Shop Act, wherein a conditional dismissal was granted with the right to replead. Neither party appeals from the dismissal of the Dram Shop Act cause of action. Plaintiffs do, however, argue that Supreme Court improperly dismissed the causes of action alleging common-law negligence and purporting to allege a violation of Penal Law former § 260.20(4). 1

Turning first to plaintiffs' common-law negligence claim, it appears that when the accident occurred, Sheehy was on the highway about 200 yards away from the Legion's beer tent. Under common law, a landowner is responsible for injuries caused to a third person by an intoxicated guest only if the injuries occurred on the landowner's property or in an area under his control where he had an opportunity to supervise the intoxicated guest ( D'Amico v. Christie, 71 N.Y.2d 76, 85, 524 N.Y.S.2d 1, 518 N.E.2d 896). This court has previously dismissed common-law claims involving injuries to others caused by intoxicated persons...

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4 practice notes
  • Sheehy v. Big Flats Community Day, Inc.
    • United States
    • New York Court of Appeals
    • June 6, 1989
    ...§ 11-100) precluded an inference that the Legislature intended a judicially created right of recovery based upon the Penal Law provision (137 A.D.2d 160, 163-164, 528 N.Y.S.2d 213). The court then granted Sheehy leave to appeal to this court, certifying the following question of law: "Did t......
  • Strassner v. Saleem
    • United States
    • United States State Supreme Court (New York)
    • February 8, 1993
    ...herein granted. (see CPLR Sec. 3211(c); Hosmer v. Distler, 150 A.D.2d 974, 541 N.Y.S.2d 650; see also Sheehy v. Big Flats Community Day, 137 A.D.2d 160, 528 N.Y.S.2d 213, aff'd. 73 N.Y.2d 629, 543 N.Y.S.2d 18, 541 N.E.2d 18; Armstrong v. Petsche, 172 A.D.2d 1079, 569 N.Y.S.2d 257; Martinez ......
  • Hosmer v. Distler
    • United States
    • New York Supreme Court — Appellate Division
    • May 25, 1989
    ...the premises of the inn (see, Etu v. Cumberland Farms, 148 A.D.2d 821, 822-823, 538 N.Y.S.2d 657, 659; Sheehy v. Big Flats Community Day, 137 A.D.2d 160, 162, 528 N.Y.S.2d Page 653 Lastly, no appeal lies from an order denying a motion for judgment notwithstanding the verdict (see, Kozlowski......
  • MacGilvray v. Denino
    • United States
    • New York Supreme Court — Appellate Division
    • April 17, 1989
    ...under either Penal Law § 260.20(4) or Alcoholic Beverage Control Law § 65 is also without merit (see, Sheehy v. Big Flats Community Day, 137 A.D.2d 160, 528 N.Y.S.2d 213; Greer v. Ferrizz, 118 A.D.2d 536, 499 N.Y.S.2d 758; but see, Stambach v. Pierce, 136 A.D.2d 329, 527 N.Y.S.2d Accordingl......
4 cases
  • Sheehy v. Big Flats Community Day, Inc.
    • United States
    • New York Court of Appeals
    • June 6, 1989
    ...§ 11-100) precluded an inference that the Legislature intended a judicially created right of recovery based upon the Penal Law provision (137 A.D.2d 160, 163-164, 528 N.Y.S.2d 213). The court then granted Sheehy leave to appeal to this court, certifying the following question of law: "Did t......
  • Strassner v. Saleem
    • United States
    • United States State Supreme Court (New York)
    • February 8, 1993
    ...herein granted. (see CPLR Sec. 3211(c); Hosmer v. Distler, 150 A.D.2d 974, 541 N.Y.S.2d 650; see also Sheehy v. Big Flats Community Day, 137 A.D.2d 160, 528 N.Y.S.2d 213, aff'd. 73 N.Y.2d 629, 543 N.Y.S.2d 18, 541 N.E.2d 18; Armstrong v. Petsche, 172 A.D.2d 1079, 569 N.Y.S.2d 257; Martinez ......
  • Hosmer v. Distler
    • United States
    • New York Supreme Court — Appellate Division
    • May 25, 1989
    ...the premises of the inn (see, Etu v. Cumberland Farms, 148 A.D.2d 821, 822-823, 538 N.Y.S.2d 657, 659; Sheehy v. Big Flats Community Day, 137 A.D.2d 160, 162, 528 N.Y.S.2d Page 653 Lastly, no appeal lies from an order denying a motion for judgment notwithstanding the verdict (see, Kozlowski......
  • MacGilvray v. Denino
    • United States
    • New York Supreme Court — Appellate Division
    • April 17, 1989
    ...under either Penal Law § 260.20(4) or Alcoholic Beverage Control Law § 65 is also without merit (see, Sheehy v. Big Flats Community Day, 137 A.D.2d 160, 528 N.Y.S.2d 213; Greer v. Ferrizz, 118 A.D.2d 536, 499 N.Y.S.2d 758; but see, Stambach v. Pierce, 136 A.D.2d 329, 527 N.Y.S.2d Accordingl......

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