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PLATANO v. NORM'S CASTLE

September 13, 1993

JOSEPH PLATANO, Individually and on behalf of the Estate of RAYMOND PLATANO, Plaintiff,
v.
NORM'S CASTLE, INC., VFW PUTNAM LAKE POST #9257, FRANK MEYER, DANIEL LEDLEY and BRIAN LEDLEY, Defendants.


BRODERICK


The opinion of the court was delivered by: VINCENT L. BRODERICK

VINCENT L. BRODERICK, U.S.D.J.

 I

 This case presents questions of the proper treatment of tragic incidents involving alleged service of alcohol in New York to inebriates whose driving brings about deaths in neighboring states.

 Plaintiff's decedent (the "victim"), driving in Connecticut, was struck and killed by an intoxicated driver who was allegedly served liquor by Norm's Castle and VFW Putnam Lake Post #9257 (the "institutional defendants") and the individual defendants in New York. *fn1"

 Jurisdiction is based on diversity of citizenship pursuant to 28 USC 1332. The defendants are concededly citizens of New York. Plaintiff, the decedent's executor, has filed an affidavit stating that the decedent was a Connecticut domiciliary with intent to reside in Connecticut for an indefinite period, and more specifically had been a student at Danbury High School and Western Connecticut State University in Danbury, Connecticut, and was employed at Deep Markets, Danbury at the time of his death.

 The parties have filed opposing motions and cross-motions seeking determination of the applicability of New York or Connecticut law with respect to Dram Shop liability of those serving the liquor and with respect to the nature of damages for wrongful death.

 The principal distinction with respect to damages is that in addition to monetary losses to the survivors, Connecticut's wrongful death statute, unlike that of New York, permits recovery for loss of enjoyment of life on the part of the decedent. In wrongful death cases New York permits prejudgment interest.

 For the reasons which follow, I dispose of the pending motions as follows: The New York Dram Shop Law (Gen Oblig Law 11-101) is applicable to determination of liability as against all defendants; under that statute, this action is not time barred. Connecticut law applies to calculation of damages for wrongful death against the institutional defendants. I deny without prejudice the motions for determination of the law applicable to calculation of wrongful death damages as against the individual defendants.

 II

 New York is the forum for this litigation, and hence its law determines the applicable choice of law rules unless this would be contrary to federal law or the Constitution. Under New York law, the court, in determining which law to apply to any particular issue of law or aspect of a case, looks to the state with the greatest interest in that given issue of law or aspect. In particular, New York choice of law concepts point to the law of a state where wrongful acts occurred, not necessarily where resulting injury was received. Cooney v. Osgood Machinery, 81 N.Y.2d 66, 612 N.E.2d 277, 595 N.Y.S.2d 919 (1993); Schultz v. BSA, 65 N.Y.2d 189, 198, 480 N.E.2d 679, 491 N.Y.S.2d 90, 95-96 (1985); Babcock v. Jackson, 12 N.Y.2d 473, 484, 240 N.Y.S.2d 743, 752, 191 N.E.2d 279 (1963). This indicates that New York's own law, designed to regulate the flow of liquor within its own boundaries, should apply to an alleged violation of its statute dealing with such matters.

 III

 The applicable statute of limitations is determined by the state with the greatest interest in the matter. Martin v. Julius Dierck Equipment Co, 52 A.D.2d 463, 384 N.Y.S.2d 479, 482 (2d Dept 1976), aff'd without discussion of this point 403 N.Y.S.2d 185 (1978). Here, the state with the greatest interest is New York. It is the regulating state, enacting and enforcing its Dram Shop Act, for the purpose of seeking to limit hazardous distribution of liquor within its borders. A three year statute of limitations is applicable to the New York's Dram Shop Act pursuant to CPLR 214 since it creates a new liability not drawn from common ...


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