Van Valkenburgh v. Koehler
| Decision Date | 10 August 1990 |
| Docket Number | No. 2,2 |
| Citation | 164 A.D.2d 971,559 N.Y.S.2d 766 |
| Parties | Mark VAN VALKENBURGH, Respondent, v. Frederick G. KOEHLER, Frederick A. Koehler, Appellants, Jeffrey Renzo and John D. Renzo, Defendants. Mark VAN VALKENBURGH, Respondent, v. TOPS FRIENDLY MARKETS, INC., Appellant. Appeal |
| Court | New York Supreme Court — Appellate Division |
Maghran, Mc Carthy & Flynn by John Flynn, Buffalo, for appellants, Frederick G. Koehler and Frederick A. Koehler.
Damon & Morey by Debra Norton, Buffalo, for appellant, Tops.
Lipsitz, Green, Fahringer, Roll, Schuller & James by John Collins, Buffalo, for respondent.
Before DENMAN, J.P., and BOOMER, PINE, BALIO and LOWERY, JJ.
The court's charge was erroneous in three respects and reversal of those judgments in which Tops Friendly Markets, Inc. was a defendant must be reversed. First, the court erred in failing to charge Vehicle and Traffic Law § 1195, thereby failing to instruct the jury that the blood alcohol test result of .01 of one percent was prima facie proof that defendant Frederick G. Koehler's ability to drive was not impaired by alcohol and that he was not in an intoxicated condition. Having received evidence of the blood alcohol test result, the court should have instructed the jury with respect to evaluating its significance (see, 1 PJI 2d § 2:20).
The court also erred in its charge with respect to the Dram Shop cause of action (General Obligations Law § 11-101). Liability under the Dram Shop Act exists only when an accident is caused by intoxication. The court committed reversible error by instructing the jury that an intoxicated person is one whose judgment is impaired, thereby allowing the jury to find that any degree of impairment, rather than impairment to the extent of incapability, was sufficient (see generally, People v. Cruz, 48 N.Y.2d 419, 427-428, 423 N.Y.S.2d 625, 399 N.E.2d 513, appeal dismissed sub nom. Cruz v. New York, 446 U.S. 901, 100 S.Ct. 1825, 64 L.Ed.2d 254; 3 CJI, V. & T.L. § 1191[1], [2], [3], at 2302, et seq.; cf., General Obligations Law § 11-100[1].
The court further erred in submitting to the jury a negligence cause of action based on Tops' illegal sale of beer to an underage person, and charging that a violation of Penal Law § 260.20 may be considered evidence of Tops' negligence; a violation of Penal Law § 260.20(4) does not provide the basis for a civil remedy (Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 636-637, 543 N.Y.S.2d 18, 541 N.E.2d 18).
We...
To continue reading
Request your trial
-
Calagiovanni v. Carello
... ... All that is left is a potential issue ... concerning the BAC for the jury to consider. See ... VanValkenburgh v. Koehler, 164 A.D.2d 971 ... (4 th Dept 1990) motion for leave to appeal denied ... 76 N.Y.2d 714 ... Conscious ... Pain ... ...
-
Calagiovanni v. Carello, 942
...injuries and death (see Oursler v. Brennan , 67 A.D.3d 36, 43, 884 N.Y.S.2d 534 [4th Dept. 2009] ; Van Valkenburgh v. Koehler , 164 A.D.2d 971, 972, 559 N.Y.S.2d 766 [4th Dept. 1990] ), i.e., that Carello was not intoxicated at the time he struck and killed decedent. In support of their mot......
-
Eschberger v. Consolidated Rail Corp.
...action, defendant has failed to preserve any issue concerning the propriety of the comments for review (see, Van Valkenburgh v. Koehler, 164 A.D.2d 971, 559 N.Y.S.2d 766). Moreover, were we to review the issue, we would hold that, although some of his remarks on summation were improper, the......
- People v. Olewine