Wright v. Sunset Recreation, Inc.

• Decision Date: 02 December 1982
• Citation: 457 N.Y.S.2d 606,91 A.D.2d 701
• Parties: Kathryn L. WRIGHT, as Executrix of the Estate of Clyde J. Wright, Deceased, Appellant, v. SUNSET RECREATION, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 606

457 N.Y.S.2d 606

91 A.D.2d 701

Kathryn L. WRIGHT, as Executrix of the Estate of Clyde J.

Wright, Deceased, Appellant, v. SUNSET RECREATION, INC., Respondent.

Supreme Court, Appellate Division,

Third Department.

Dec. 2, 1982.

Toomey & Dorfman, Albany (John E. Dorfman, Albany, of counsel), for appellant.

Tabner, Carlson, Farrell & Cholakis, Albany (Edward M. Scher, Albany, of counsel), for respondent.

Before MAHONEY, P.J., and MIKOLL, YESAWICH and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered October 26, 1981 in Rensselaer County, which granted defendant's motion for summary judgment dismissing the complaint.

During the early morning hours of December 23, 1979, Clyde J. Wright was travelling east on Route I-90 in the Town of East Greenbush when his vehicle was struck by an automobile, operated by Thomas Donnelly and owned by his wife, travelling west in the same traffic lane. Mr. Wright died from the injuries sustained in the accident. Thereafter, plaintiff, wife of the deceased and executrix of his estate, commenced an action against the Donnellys and the instant action against Sunset Recreation, Inc., wherein she alleged that the corporate defendant was responsible for her loss both on a theory of common-law negligence and strict liability pursuant to the Dram Shop Act (General Obligations Law, § 11-101). In both actions the complaint alleges that Mr. Donnelly was intoxicated at the time of the accident. Defendant Sunset Recreation, Inc. moved for summary judgment. Special Term granted the motion and this appeal by plaintiff ensued. ¹

Turning to the common-law negligence theory first, we conclude that it does not raise a triable issue of fact. Any duty under this theory to control the conduct of patrons in consuming alcoholic beverages does not extend beyond the area where supervision and control may reasonably be exercised (Schirmer v. Yost, 60 A.D.2d 789, 400 N.Y.S.2d 655; Paul v. Hogan, 56 A.D.2d 723, 392 N.Y.S.2d 766). The deceased in the instant case was fatally injured by the actions of Thomas Donnelly driving a vehicle on a highway many miles away from the site of defendant's building. Plaintiff thus failed to allege the existence of any facts which could support a finding of liability against defendant on a theory of common-law negligence.

In her strict liability cause of action, plaintiff contends she has raised issues of fact as to whether defendant, in violation of section 11-101 of the General Obligations Law and section 65 of the Alcoholic Beverage Control Law, unlawfully assisted its lessee, Sunset Tavern, ² in procuring liquor for an intoxicated person and, therefore, caused or contributed to such intoxication. This contention is premised on the fact that both Sunset Tavern and defendant occupy the same building, with the former selling alcoholic beverages and the latter operating a bowling alley. Waitresses of the tavern...