Smith v. Guli

CourtNew York Supreme Court — Appellate Division
Writing for the CourtBefore CALLAHAN; CALLAHAN
Citation484 N.Y.S.2d 740,106 A.D.2d 120
Decision Date29 January 1985
PartiesTodd SMITH, Plaintiff, v. Lawrence J. GULI, et al., Defendants. JACK RYAN'S PLACE, INC., Jack Ryan, Jr. and Ada Ryan, Third-Party Plaintiffs-Respondents, v. Richard J. HORAN, et al., Third-Party Defendants, and Wambach Farms, Inc., Third-Party Defendant-Appellant.

Page 740

484 N.Y.S.2d 740
106 A.D.2d 120
Todd SMITH, Plaintiff,
v.
Lawrence J. GULI, et al., Defendants.
JACK RYAN'S PLACE, INC., Jack Ryan, Jr. and Ada Ryan,
Third-Party Plaintiffs-Respondents,
v.
Richard J. HORAN, et al., Third-Party Defendants,
and
Wambach Farms, Inc., Third-Party Defendant-Appellant.
Supreme Court, Appellate Division,
Fourth Department.
Jan. 29, 1985.

Greisberger, Zicari, McConville, Cooman & Morin, P.C., Rochester, for third-party defendant-appellant Wambach Farms (Richard A. Dollinger, Rochester, of counsel).

Culley, Marks, Corbett, Tanenbaum, Reifsteck & Potter, Rochester, for third-party plaintiffs-respondents Jack Ryan's

Page 741

Place, Jack Ryan and Ada Ryan (Cheryl Heller Siragusa, Rochester, of counsel).

Before CALLAHAN, J.P., and DENMAN, BOOMER, O'DONNELL and SCHNEPP, JJ.

CALLAHAN, Justice Presiding.

This appeal concerns a third-party action commenced by defendants third-party plaintiffs Jack Ryan's Place, Inc., Jack Ryan, Jr., and Ada Ryan (Jack Ryan's) against Wambach Farms, Inc. (Wambach's), third-party defendant. The original action was instituted by plaintiff Todd Smith against several defendants, including Jack Ryan's, seeking damages for personal injuries suffered as a passenger in an automobile accident. Plaintiff's complaint alleges that Jack Ryan's Place, a tavern in the City of Rochester, violated New York's Dram Shop Act (General Obligations Law § 11-101 ) when it sold, served, or gave away alcoholic beverages to co-defendant Lawrence J. Guli, knowing that he was then under the influence of alcohol or intoxicated. Plaintiff Smith did not assert a direct action against Wambach's.

At an examination before trial, Guli disclosed that he was 17 years old and did not possess a driver's license on the date of the accident. He detailed the amount, manner and location of alcoholic beverages consumed on the evening prior to the accident in which the plaintiff was injured. He stated that he and two friends drove his mother's automobile to Wambach's, a retail grocery store operated by third-party defendant, where they purchased a six-pack of beer. After drinking one or two of those beers, he went to a liquor store and purchased a pint of whiskey. He drank six or seven shots of whiskey and then went to a church festival where he had two to four beers. After leaving the festival, he returned home where he found a quart of Jim Beam liquor. He and a friend each had about six shots of Jim Beam as they drove around in the friend's car. After this, they picked up plaintiff Todd Smith. They then went to another grocery store where they purchased an eight-pack of beer. While he and his friend split seven beers, plaintiff drank the other one. They went back to the church festival where they consumed some more beer and then proceeded to drive around during which time he and his friend split ten additional shots of Jim Beam. Next they traveled to the Main Place Bar where they consumed a "Kamikaze". They then went to Jack Ryan's where they had a "Boilermaker". Not surprisingly, Guli admitted that he was intoxicated at the time of the accident.

Following Guli's examination before trial, defendant Jack Ryan's commenced a third-party action seeking contribution from Wambach's and all other vendors who sold or served Guli alcoholic beverages. Wambach's brought a motion to dismiss the third-party complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action. In its motion papers, Wambach's asserted that public policy prohibits one tortfeasor from obtaining contribution or apportionment of damages in the circumstances of this case. On this appeal from Special...

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13 practice notes
  • Calagiovanni v. Carello, 2019-34270
    • United States
    • United States State Supreme Court (New York)
    • 7 January 2019
    ...for contribution and common law indemnification is without merit. See Pursier v. Brennan. 67 A.D.3d 36 (4th Dept 2009); Smith v. Guli, 106 A.D.2d 120 (4th Dept 1985). The motion is predicated on the supposition that Hafner's possesses no liability to Rupert and the claim against it has no m......
  • Calagiovanni v. Carello, Index 2016EF2787
    • United States
    • United States State Supreme Court (New York)
    • 7 January 2019
    ...for contribution and common law indemnification is without merit. See Pursier v. Brennan. 67 A.D.3d 36 (4th Dept 2009); Smith v. Guli, 106 A.D.2d 120 (4th Dept 1985). The motion is predicated on the supposition that Hafner's possesses no liability to Rupert and the claim against it has no m......
  • Fox v. Mercer
    • United States
    • New York Supreme Court Appellate Division
    • 4 June 1985
    ...wrongful death may claim contribution among themselves as to compensatory damages awarded to the injured party (CPLR 1401; Smith v. Guli, 106 A.D.2d 120, 484 N.Y.S.2d 740; Herrick v. Second Cuthouse, 100 A.D.2d 952, 475 N.Y.S.2d 91, affd. 64 N.Y.2d 692, 485 N.Y.S.2d 518, 474 N.E.2d 1186; We......
  • Powers v. Niagara Mohawk Power Corp., No. 1
    • United States
    • New York Supreme Court Appellate Division
    • 11 June 1987
    ...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, 484 N.Y.S.2d 740). To determine what constitutes an unlawful sale of liquor under General Obligations Law § 11-101, the statute must b......
  • Request a trial to view additional results
13 cases
  • Calagiovanni v. Carello, 2019-34270
    • United States
    • United States State Supreme Court (New York)
    • 7 January 2019
    ...for contribution and common law indemnification is without merit. See Pursier v. Brennan. 67 A.D.3d 36 (4th Dept 2009); Smith v. Guli, 106 A.D.2d 120 (4th Dept 1985). The motion is predicated on the supposition that Hafner's possesses no liability to Rupert and the claim against it has no m......
  • Calagiovanni v. Carello, Index 2016EF2787
    • United States
    • United States State Supreme Court (New York)
    • 7 January 2019
    ...for contribution and common law indemnification is without merit. See Pursier v. Brennan. 67 A.D.3d 36 (4th Dept 2009); Smith v. Guli, 106 A.D.2d 120 (4th Dept 1985). The motion is predicated on the supposition that Hafner's possesses no liability to Rupert and the claim against it has no m......
  • Fox v. Mercer
    • United States
    • New York Supreme Court Appellate Division
    • 4 June 1985
    ...wrongful death may claim contribution among themselves as to compensatory damages awarded to the injured party (CPLR 1401; Smith v. Guli, 106 A.D.2d 120, 484 N.Y.S.2d 740; Herrick v. Second Cuthouse, 100 A.D.2d 952, 475 N.Y.S.2d 91, affd. 64 N.Y.2d 692, 485 N.Y.S.2d 518, 474 N.E.2d 1186; We......
  • Powers v. Niagara Mohawk Power Corp., No. 1
    • United States
    • New York Supreme Court Appellate Division
    • 11 June 1987
    ...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, 484 N.Y.S.2d 740). To determine what constitutes an unlawful sale of liquor under General Obligations Law § 11-101, the statute must b......
  • Request a trial to view additional results

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