Valicenti v. Valenze

CourtNew York Supreme Court Appellate Division
Writing for the CourtLEVINE; KANE; KANE
Citation488 N.Y.S.2d 834,108 A.D.2d 300
Decision Date09 May 1985
PartiesVincent R. VALICENTI, Individually and as Parent and Guardian of Margaret Valicenti et al., Infants, Respondent, v. Albert M. VALENZE et al., a Partnership Doing Business as the Brass Ring, Appellants.

Page 834

488 N.Y.S.2d 834
108 A.D.2d 300
Vincent R. VALICENTI, Individually and as Parent and
Guardian of Margaret Valicenti et al., Infants, Respondent,
v.
Albert M. VALENZE et al., a Partnership Doing Business as
the Brass Ring, Appellants.
Supreme Court, Appellate Division,
Third Department.
May 9, 1985.

Page 835

Thaler & Thaler, Ithaca (Nathaniel F. Knappen, Ithaca, of counsel), for appellants.

Denton, Keyser, LaBrecque & Moore, Elmira (Peter C. Buckley, Elmira, of counsel), for respondent.

Before MAHONEY, P.J., and CASEY, WEISS, KANE and LEVINE, JJ.

LEVINE, Justice.

This action was brought by plaintiff against defendants as partners operating a bar in the City of Elmira and arises out of the death of Judy H. Valicenti, plaintiff's wife and the mother of his children. The complaint alleges that defendants unlawfully and negligently sold the deceased alcoholic beverages while she was intoxicated and, as a result, she was killed in an accident while driving her automobile from the bar. The single cause of action claims damages in negligence and under the Dram Shop Act (General Obligations Law § 11-101) for plaintiff's and the children's loss of "support, maintenance, care, nurture, love, guidance, training and education". Pretrial discovery disclosed that the deceased had left her family some 10 months before the accident, was contemplating divorce, and was not contributing toward the family support but, in fact, was being partially supported by her husband. Defendants moved for summary judgment on the grounds that plaintiff and his children suffered no loss of support for which they can recover under the Dram Shop Act and that their remaining claims for damages are invalid as a matter of law. They appeal from the denial of that motion.

In contending that plaintiff's evidence was legally insufficient to establish that he and the children were "injured in * * * means of support" (General Obligations Law § 11-101[1] ), defendants principally rely on Volans v. Owen, 74 N.Y. 526, followed in McNally v. Addis, 65 Misc.2d 204, 223, 317 N.Y.S.2d 157, for the proposition that a Dram Shop Act cause of action based on lost support is only maintainable by one who was actually accustomed to receiving support from the intoxicated person and was reduced to a state of dependency by the loss incurred. Defendants argue that this necessary element of plaintiff's cause of action was conclusively negated in pretrial discovery, and that plaintiff's proof, that his wife was working and receiving educational training to increase

Page 836

her earning potential for future contributions to the family's resources, was too speculative and remote as a basis of showing loss.

For the reasons that follow, we decline to apply such a restrictive interpretation of the statute. First, the original Dram Shop Act statute (L 1873, ch 646) was entitled "An Act to Suppress Intemperance, Pauperism and Crime", and a reading of Volans v. Owen (supra) and other early cases discloses that the courts drew heavily on that statement of legislative purpose in construing the scope of the new civil remedy thereby created. The quoted purpose was not, however, carried forward in various later revisions and reenactments of the Dram Shop Act, through its incorporation in its present form in Civil Rights Law § 16 (L 1921, ch 157). Therefore, it cannot be assumed that the original, narrow statutory purpose was the sole motivation for the subsequent Dram Shop Act legislation. Indeed, more recent cases focus broadly on the deterrent and remedial purposes of the act through its imposition of strict liability (see Wright v. Sunset Recreation, 91 A.D.2d 701, 457 N.Y.S.2d 606; Matalavage v. Sadler, 77 A.D.2d 39, 43, 432 N.Y.S.2d 103; Mitchell v. The Shoals, Inc., 26 A.D.2d 78, 79, 271 N.Y.S.2d 137, affd. 19 N.Y.2d 338, 280 N.Y.S.2d 113, 227 N.E.2d 21). Accordingly, the early legal history of the Dram Shop Act and its correspondingly rigorous interpretation in the case law is not controlling.

Second, both Volans v. Owen (supra) and McNally v. Addis (supra) involved loss of support claims by parents for the death or disablement of their minor children who were sold alcoholic beverages. Such children owed no duty of support to the plaintiffs in those cases. Here, however, the deceased was directly chargeable by statute for both spousal support and child support until each child's 21st birthday (Family Ct Act §§ 412, 413, as amended by L 1980, ch 281, §§ 27, 28). Although there is a dearth of modern New York decisional law construing the means of support provisions of the Dram Shop Act in cases brought on behalf of a spouse or a dependent child, contemporary cases in other jurisdictions applying similar statutes find the distinction critical, relaxing the requirements of proof of actual...

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6 practice notes
  • Fox v. Mercer
    • United States
    • New York Supreme Court Appellate Division
    • June 4, 1985
    ...been overruled and are accepted as established jurisprudence (see, 3 NY Jur 2d, Alcoholic Beverages, § 130 but see, Valicenti v. Valenze, 108 A.D.2d 300, 488 N.Y.S.2d 834. Page 795 In Sharpley v. Brown, 43 Hun. 374 relied upon by the defendants, it was held that post-death changes in circum......
  • Marsico v. Southland Corp.
    • United States
    • New York Supreme Court Appellate Division
    • March 13, 1989
    ...to assume such a responsibility (see, Scheu v. High Forest Corp., 129 A.D.2d 366, 517 N.Y.S.2d 798, supra; cf., Valicenti v. Valenze, 108 A.D.2d 300, 488 N.Y.S.2d 834, mod. on other grounds 68 N.Y.2d 826, 507 N.Y.S.2d 616, 499 N.E.2d 870 [involving the loss of a spouse] ). Moreover, funeral......
  • Raynor v. C.G.C. Grocery Corp.
    • United States
    • New York Supreme Court Appellate Division
    • March 2, 1990
    ...plaintiff must establish that those expenses reduced her to a state of dependency, we decline to follow it (see, Valicenti v. Valenze, 108 A.D.2d 300, 488 N.Y.S.2d 834, mod. on other grounds 68 N.Y.2d 826, 507 N.Y.S.2d 616, 499 N.E.2d MOLLEN, P.J., and THOMPSON and EIBER, JJ., concur. LAWRE......
  • Scheu v. High-Forest Corp., HIGH-FORREST
    • United States
    • New York Supreme Court Appellate Division
    • July 9, 1987
    ...recovery of damages under the Dram Shop Act recently has been considered and somewhat broadened by our holding in Valicenti v. Valenze, 108 A.D.2d 300, 488 N.Y.S.2d 834, mod. 68 N.Y.2d 826, 507 N.Y.S.2d 616, 499 N.E.2d 870, the burden is still on plaintiffs to prove damages that are recover......
  • Request a trial to view additional results
6 cases
  • Fox v. Mercer
    • United States
    • New York Supreme Court Appellate Division
    • June 4, 1985
    ...been overruled and are accepted as established jurisprudence (see, 3 NY Jur 2d, Alcoholic Beverages, § 130 but see, Valicenti v. Valenze, 108 A.D.2d 300, 488 N.Y.S.2d 834. Page 795 In Sharpley v. Brown, 43 Hun. 374 relied upon by the defendants, it was held that post-death changes in circum......
  • Marsico v. Southland Corp.
    • United States
    • New York Supreme Court Appellate Division
    • March 13, 1989
    ...to assume such a responsibility (see, Scheu v. High Forest Corp., 129 A.D.2d 366, 517 N.Y.S.2d 798, supra; cf., Valicenti v. Valenze, 108 A.D.2d 300, 488 N.Y.S.2d 834, mod. on other grounds 68 N.Y.2d 826, 507 N.Y.S.2d 616, 499 N.E.2d 870 [involving the loss of a spouse] ). Moreover, funeral......
  • Raynor v. C.G.C. Grocery Corp.
    • United States
    • New York Supreme Court Appellate Division
    • March 2, 1990
    ...plaintiff must establish that those expenses reduced her to a state of dependency, we decline to follow it (see, Valicenti v. Valenze, 108 A.D.2d 300, 488 N.Y.S.2d 834, mod. on other grounds 68 N.Y.2d 826, 507 N.Y.S.2d 616, 499 N.E.2d MOLLEN, P.J., and THOMPSON and EIBER, JJ., concur. LAWRE......
  • Scheu v. High-Forest Corp., HIGH-FORREST
    • United States
    • New York Supreme Court Appellate Division
    • July 9, 1987
    ...recovery of damages under the Dram Shop Act recently has been considered and somewhat broadened by our holding in Valicenti v. Valenze, 108 A.D.2d 300, 488 N.Y.S.2d 834, mod. 68 N.Y.2d 826, 507 N.Y.S.2d 616, 499 N.E.2d 870, the burden is still on plaintiffs to prove damages that are recover......
  • Request a trial to view additional results

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