Appeals from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), entered February 14, 2008. The order, insofar as appealed from, granted those parts of the motion of defendant Malbeat, Inc., doing business as Mallwitz's Island Lanes, for summary judgment dismissing the fourth cause of action and the cross claim of defendant Robert E. Brennan against it.
The opinion of the court was delivered by: Peradotto, J.
PRESENT: HURLBUTT, J.P., CENTRA, PERADOTTO, CARNI, AND GORSKI, JJ.
It is hereby ORDERED that the order insofar as appealed from is reversed on the law without costs, the motion of defendant Malbeat, Inc., doing business as Mallwitz's Island Lanes, is denied in part and the fourth cause of action and the cross claim of defendant Robert E. Brennan against it are reinstated.
The primary issue to be determined on this appeal is what actions constitute "guilty participation" on the part of a plaintiff so as to preclude recovery under General Obligations Law § 11-101 (Dram Shop Act). More specifically, we must determine whether plaintiff is unable to state a cause of action under that statute as a matter of law because he purchased two alcoholic beverages for his wife (decedent). We conclude that defendant Malbeat, Inc., doing business as Mallwitz's Island Lanes (Malbeat), did not meet its burden of establishing, as a matter of law, that plaintiff is precluded from recovering under the Dram Shop Act based on the fact that he bought decedent two drinks on the night that she was killed.
On October 26, 2002, plaintiff and decedent attended a Halloween costume party at Mallwitz's Island Lanes in Grand Island (Island Lanes), an establishment owned by Malbeat. Decedent was dressed as a witch and was clad entirely in black. The couple arrived at the party at approximately 10:30 P.M. Plaintiff purchased decedent's first drink of the night, a beer, shortly after the couple's arrival. For much of the party, decedent sang Karaoke in the bar area of the bowling alley while plaintiff played pool and shuffleboard in the back room. Plaintiff testified at his deposition that he purchased a second beer for decedent sometime prior to the costume contest, which occurred at approximately 12:30 A.M. Island Lanes also offered its patrons free "Jell-O shots" containing alcohol, and plaintiff testified that decedent consumed at least two of those shots. Throughout the evening, decedent purchased additional drinks for herself, and the couple's friends also took turns purchasing drinks for decedent. Plaintiff estimated that decedent consumed approximately six beers at the party.
After the winner of the costume contest was announced, decedent began to argue with another contestant. Plaintiff and decedent left Island Lanes, but the altercation continued in the parking lot and plaintiff was injured. The police arrived on the scene at approximately 1:45 A.M. and concluded that decedent was intoxicated. Plaintiff was taken to the hospital in an ambulance and an officer drove decedent to her mother's house.
Approximately an hour after the police left decedent with her mother, decedent departed on foot in search of her husband, whom she erroneously believed had been taken to the police station. As decedent was walking along the unlit shoulder of Whitehaven Road, still dressed entirely in black, defendant Robert E. Brennan struck decedent with the driver's side mirror of his vehicle as he was entering his driveway. Brennan continued into his driveway and called 911 from his home. Minutes later, an officer responding to calls concerning a suspicious person walking down Whitehaven Road ran over decedent in his patrol vehicle as she lay on the side of the road. Decedent's injuries were fatal.
Plaintiff commenced this action, individually and as the administrator of decedent's estate, seeking damages resulting from decedent's death. As administrator of decedent's estate, plaintiff asserted causes of action for negligence against Brennan and Malbeat. Both in his individual capacity and as administrator of decedent's estate, plaintiff asserted causes of action for violations of the Dram Shop Act against Malbeat. In his answer, Brennan interposed a cross claim for contribution.
Malbeat moved for summary judgment dismissing the complaint and all cross claims against it, and Supreme Court granted the motion. Although the court concluded that a jury could find that Malbeat violated the Dram Shop Act, it further concluded that an intoxicated person does not have a cause of action under the statute. With respect to Brennan's cross claim, the court concluded that, because "there cannot be a finding against Malbeat, there can be no right to contribution."
Plaintiff contends on appeal only that the court erred in dismissing his fourth cause of action, asserted in his individual capacity, for loss of support pursuant to the Dram Shop Act. Brennan contends that the court erred in ...