Strassner v. Saleem

• Decision Date: 08 February 1993
• Citation: 156 Misc.2d 768,594 N.Y.S.2d 559
• Parties: Mitchell A. STRASSNER, Plaintiff, v. S. Jahangir SALEEM and Najeeb Ahmad, As Executor of the Estate of Elizabeth Ahmad, Defendants. S. Jahangir SALEEM and Najeeb Ahmad, As Executor of the Estate of Elizabeth Ahmad, Third-Party Plaintiffs, v. Michael LASCH, Third-Party Defendant.
• Court: New York Supreme Court

Page 559

594 N.Y.S.2d 559

156 Misc.2d 768

Mitchell A. STRASSNER, Plaintiff, v. S. Jahangir SALEEM and Najeeb Ahmad, As Executor of the

Estate of Elizabeth Ahmad, Defendants.

S. Jahangir SALEEM and Najeeb Ahmad, As Executor of the Estate of Elizabeth Ahmad, Third-Party Plaintiffs, v. Michael LASCH, Third-Party Defendant.

Supreme Court, Monroe County Special Term Motion.

Feb. 8, 1993.

Carl L. Feinstock, Rochester, for plaintiff.

Culley, Marks, Tanenbaum, Reifsteck, Potter & Capell, Rochester (Heather A. Martin, of counsel), for defendants/third-party plaintiffs.

Martin & Labowitz, Rochester (Janice M. Iati, of counsel), for third-party defendant.

FRANCIS A. AFFRONTI, Justice.

On November 17, 1991, the twenty year old intoxicated plaintiff was physically injured when he ran onto a public highway and was struck by a vehicle driven by defendant Saleem, and owned by Elizabeth Ahmad, now deceased. This motion filed by defendants seeks dismissal of the third-party complaint, which asserts a unique contribution claim, founded upon the allegation that the third-party defendant homeowner violated General Obligations Law Section 11-100, by providing alcohol to the plaintiff, which contributed to his intoxication. Additionally, the third-party complaint alleges that Mr. Lasch, the homeowner, was negligent by allowing plaintiff to be present on the highway knowing that he was intoxicated. At the time of the accident, the plaintiff was a guest at a 21st birthday party given for another individual at Lasch's residence, and attended by several other youths, also under the legal drinking age of 21. As such, if plaintiff is successful against the defendants, they seek monetary contribution from the homeowner.

The motion is premised upon the argument that the third-party complaint fails to state a cause of action (CPLR 3211(a)(7)). Since the defendants concede that plaintiff's injuries occurred on a public highway, adjacent to the Lasch home, and because it is well-settled that the duty to control or supervise an intoxicated guest does not extend beyond one's premises, clearly the third-party defendant is entitled to summary judgment dismissing defendants' second cause of action alleging common-law negligence, which relief is 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 v. Camardella, 161 A.D.2d 1107, 558 N.Y.S.2d 211).

However, a more difficult and intriguing issue relates to whether New York should recognize the third-party complaint's contribution claim alleging a violation of General Obligations Law, Sec. 11-100. In this regard, a defendant may seek contribution from a third party where it is shown that a duty owed by that person, to another party, has been breached. (First Bible Baptist Church, Inc. v. Gates-Chili Central School District, 172 A.D.2d 1057, 569 N.Y.S.2d 313).

On this point, the third-party defendant, citing legislative memorandum, argues that the primary purpose of General Obligations Law Sec. 11-100, "is to attach civil liability to anyone who knowingly furnishes alcoholic beverages to any intoxicated person under the age of 19 years (now 21 years, as amended December 21, 1985), while also recognizing the increased incidence of automobile accidents resulting from drunk driving " (emphasis added). (See 1983 NYLegis.Ann., at 201). Consequently, it is urged by the moving party that since the legislative intent was to remove drunk drivers from our state's roadways, it can reasonably be inferred that the Legislature only intended to authorize claims by those who are injured by intoxicated drivers, and therefore, the statute is inapplicable to situations where the intoxicated party is not a driver.

However, it should be emphasized that the statute's goal is to provide a cause of action against anyone who knowingly furnishes alcohol to underage persons, if the intoxication results in injury or damage to a third person, since a "literal interpretation of the statute ... furthers the intent of the Legislature ... to control and regulate the dispensing of alcoholic beverages to minors." (See Schrader v. Carney, 180 A.D.2d 200, 207, 586 N.Y.S.2d 687). Likewise, as stated in Schrader v. Carney, supra, General Obligations Law Section 11-100, should be interpreted consistently with the construction of General Obligations Law Section 11-101 (citing Sheehy v. Big Flats Community Day, supra).

Judicial tribunals have rejected "Dram Shop Act" contribution claims under General Obligations Law Sec. 11-101, asserted against taverns by an owner/operator of a motor vehicle who is sued by an intoxicated plaintiff/pedestrian, injured by the driver of such vehicle. (see Fowler v. Taffe, 152 Misc.2d 343, 576 N.Y.S.2d 743; Woodbeck v. M. Caputo and Associates, 131 Misc.2d 321, 500 N.Y.S.2d 481). Despite finding, however, that being "cast in damages" was conceivably within the meaning of "injury" for "Dram Shop Act" purposes, and that the statute doesn't expressly foreclose contribution, nevertheless, the court, in Woodbeck, supra, held that comparative negligence adequately protected a defendant's interests, and refused to extend contribution to include the third-party, on the theory that the driver is not accountable to the extent that the resultant injuries arose from the plaintiff's own voluntary intoxication. (at pg. 326, 500 N.Y.S.2d 481).

Upon a review of existing case precedent, it is difficult to distinguish the validity of contribution claims against taverns, commenced by intoxicated persons who harmed innocent third parties, as opposed to those instances where sober drivers seek contribution for injuries they caused intoxicated plaintiffs. (See Johnson v. Plotkin, 172 A.D.2d 88, 577 N.Y.S.2d 329; Cresswell v. Warden, 164 A.D.2d 855, 559 N.Y.S.2d 361); J.S.M. Contr. v. Old Route 6 Pub, Ltd., 129 Misc.2d 604, 493 N.Y.S.2d 930. In Johnson, (supra, 172 A.D.2d p. 90, 577 N.Y.S.2d 329), it was determined that a municipality was "subject to liability for damages for the same...