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CONRAD v. BECK-TUREK

July 5, 1995

DOROTHY CONRAD, individually and as administratrix of the estate of RANDALL CONRAD, Plaintiff, against BECK-TUREK, LTD, INC., d/b/a SKINNER'S BAR, and AUGIE'S BAR AT THE CULINARY INSTITUTE OF AMERICA, Defendants. BECK-TUREK, LTD., d/b/a/ SKINNER'S BAR, Third-Party Plaintiff, -against- WILLIAM DOWNEY and ALICIA SHINNICK, Third-Party Defendants.


The opinion of the court was delivered by: BARRINGTON D. PARKER, JR.

 BARRINGTON D. PARKER, JR., U.S.D.J.

 FACTS

 This action for personal injury arising from a single-car accident in Dutchess County, New York, in November of 1991, which resulted in the death of Randall Conrad ("the decedent"), is before this Court on the Defendants' and Third-Party Defendants' motions for summary judgment. The Plaintiff, Dorothy Conrad ("Conrad"), sues for violations of the New York Dram Shop Act, General Obligations Law § 11-101, and in common law negligence for (1) the wrongful death of the decedent, (2) the pain and suffering of the decedent, and (3) his loss of services, care, support, counsel and guidance.

 Conrad is the decedent's mother and the duly appointed General Administratrix and Administratrix Ad Prosequendum of his estate. She brings this action in both her individual and representative capacities against the Defendants, Beck-Turek Ltd., Inc. d/b/a/ Skinner's Bar ("Skinner's Bar") and Augie's Bar at the Culinary Institute of America ("Augie's Bar"). The Defendants have cross-claimed against each other and instituted a Third-Party action for contribution and indemnification against Alicia Shinnick ("Shinnick), the owner of the car, and William Downey ("Downey"), the driver.

 Certain facts are not in dispute. The accident occurred at 2:42am, November 12, 1991, on Spackenhill Road in Poughkeepsie, New York. Earlier in the evening of November 11, at approximately 9:00pm, the driver, Downey, was joined by Kevin Bohler ("Bohler"), Anthony O'Shea ("O'Shea") and the decedent at Augie's Bar where they drank beer. The four men left Augie's Bar sometime after 10:00pm. They arrived at Skinner's Bar sometime before 11:30pm, where they shared pitchers of beer. Downey and Bohler also drank shots of hard liquor.

 The four men left Skinner's Bar in Downey's car sometime between 2:10 - 2:30am, on November 12, 1991, for a bar called Smiles. While descending a hill and rounding a curve on Spackenhill Road, however, Downey lost control of the car. The car fell down a 50-foot embankment and stopped after colliding with a tree at the bottom. The decedent died as a result of multiple skull fractures sustained during the accident. He was taken to Vassar Brothers Hospital in Poughkeepsie where he was pronounced dead at 3:40am.

 Before commencing this action, Conrad, as the Administratrix of the Estate, executed a General Release of claims against Shinnick and Downey, pursuant to a settlement agreement in the amount of $ 100,000.00 -- the full limit of the United Services Automobile Association ("USAA") vehicle insurance policy. In addition, in November of 1994, Conrad executed a stipulation of discontinuance as against Augie's Bar.

 Previously, Skinner's Bar moved pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment. The Court denied the motion. Augie's Bar, and Shinnick and Downey have now moved for summary judgment. Skinner's Bar has renewed its motion for summary judgment.

 DISCUSSION

 I. Standard for Summary Judgment

 Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment if:

 
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

 The Court's responsibility is to perform "the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." McNeil v. Aguilos, 831 F. Supp. 1079, 1082 (S.D.N.Y. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).

 The responding party "must set forth facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56 (e). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See McNeil, 831 F. Supp. at 1082 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962)(per curium)(other citations omitted)). See also Coach Leatherware Co., Inc., v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991)(citing Knight v. U.S. Fire Ins., 804 F.2d 9 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570, 94 L. Ed. 2d 762 (1987))(other citations omitted).

 II. Third-Party Defendants' Motion for Summary Judgment

 In 1992, Conrad in her capacity as Administratrix released Shinnick and Downey from "all claims for personal injury suffered by Randall Conrad in an automobile accident which took place on November 12, 1991 in Poughkeepsie, New York which injuries resulted in the death of Randall Conrad." In exchange, Shinnick tendered payment in the full amount of the vehicle insurance policy -- $ 100,000.

 New York Civil Practice Laws and Rules § 1401 permits claims for contribution among joint tortfeasors. Section 1401 makes an exception, however, for a joint tortfeasor with whom the plaintiff has settled pursuant to New York General Obligations Law § 15-108 ("§ 15-108"). *fn1" Upon a pre-trial release from liability, § 15-108 extinguishes any claim for contribution against the settling tortfeasor. The settling tortfeasor, in effect, buys his peace. The plaintiff's claim against the non-settling tortfeasor is reduced by the amount of the settlement or the settling tortfeasor's equitable share of the fault, whichever is greater.

 Shinnick and Downey have moved for summary judgment seeking dismissal of Skinner's Bar's claims for contribution and indemnification. Skinner's Bar concedes that its claims for contribution are barred by § 15-108. Skinner's Bar asserts, however, that § 15-108 defines and limits only the right to contribution; it has no bearing on its claim to indemnity.

 It is well-settled that an "indemnity cause of action can be sustained only if the third-party plaintiff and the third-party defendant have breached a duty to plaintiff and also if some duty to indemnify exists between them." Rosado v. Proctor & Schwartz, Inc., 66 N.Y.2d 21, 24, 484 N.E.2d 1354, 1356, 494 N.Y.S.2d 851, 853 (1985) (citation omitted). The New York Court of Appeals has emphasized that contribution and indemnity are fundamentally different claims:

 
The right to contribution is not founded on nor does it arise from contract and only ratable or proportional reimbursement is sought in an action for contribution. . . . The right to indemnity, as distinguished from contribution, is not dependent upon the legislative will. It springs from a ...

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