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O'Gara v. Alacci

September 22, 2009

KATHLEEN ANN O'GARA, PLAINTIFF,
v.
GLADYS ALACCI, ET AL., DEFENDANTS THIRD-PARTY PLAINTIFFS-APPELLANTS
v.
KATONAH BAR & GRILL, ET AL., THIRD-PARTY DEFENDANTS- RESPONDENTS.



APPEAL by the defendants third-party plaintiffs, in an action to recover damages for personal injuries, from an order of the Supreme Court (Gerald E. Loehr, J.), entered May 8, 2008, in Westchester County, which granted that branch of the motion of the third-party defendants which was pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint and denied that branch of their cross motion which was for leave to amend the third-party complaint to allege a violation of General Obligations Law § 11-101. Justice Leventhal has been substituted for former Associate Justice Ritter (see 22 NYCRR 670.1[c]).

The opinion of the court was delivered by: Covello, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., JOSEPH COVELLO, DANIEL D. ANGIOLILLO and JOHN M. LEVENTHAL, JJ.

(Index No. 18828/07)

OPINION & ORDER

In this action to recover damages for personal injuries, the primary question presented is whether the owner and operator of a car that struck an intoxicated and allegedly careless pedestrian may seek contribution from the party that sold alcohol to the pedestrian, based on that party's alleged violation of the Dram Shop Act (see General Obligations Law § 11-101). We answer that question in the affirmative.

Early on the morning of October 29, 2006, the defendant third-party plaintiff Matthew D. Alacci was driving a car owned by the defendant third-party plaintiff Gladys Alacci (hereinafter together the appellants) on a parkway in Westchester County. Shortly before 5:00 A.M., the car struck the plaintiff, who, for some unknown reason, was attempting to walk across the parkway. Indeed, when interviewed about the accident, the plaintiff was unable to recall how she came to be on the parkway. She was, however, able to recall that before the accident, she took the drug Percocet, and consumed copious amounts of alcohol at a bar owned and/or operated by the third-party defendants.

Alleging that the car was negligently operated, the plaintiff commenced the instant action against the appellants to recover damages for certain injuries she allegedly sustained as a result of the accident. In their answer, the appellants, alleging that the accident was caused in whole or in part by the plaintiff's culpable conduct, raised the affirmative defense of comparative fault.

After interposing their answer, the appellants commenced a third-party action against the third-party defendants seeking, among other things, contribution. In support of that claim, the appellants alleged that the accident was caused in part by the third-party defendants' employees' "active... negligence" in serving alcohol to the plaintiff "in such quantities and over a long period of time" that the employees either knew or should have known she was intoxicated.

Affording the third-party complaint a liberal construction, as we must in light of the procedural posture of this case (see CPLR 3211[a][7]; Leon v Martinez, 84 NY2d 83, 87), it is clear the appellants were seeking contribution from the third-party defendants based on an alleged violation of the Dram Shop Act. In this regard, the Alcoholic Beverage Control Law makes it illegal for sellers of alcohol such as the third-party defendants to sell alcohol to a visibly intoxicated person (see Alcoholic Beverage Control Law § 65[2]), and the Dram Shop Act provides "[a]ny person" who has been "injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxication of any person," with a cause of action to recover "actual... damages" from "any person" who "caused or contributed to such intoxication" by "unlawful[ly] selling" alcohol to the intoxicated person (General Obligations Law § 11-101[1]).

The third-party defendants moved pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint, contending that it failed to state a cause of action for which relief could be granted. In support of their motion, the third-party defendants argued, among other things, that the appellants could not seek contribution pursuant to a "negligent intoxication" theory because the common law does not recognize a cause of action in favor of a party injured by reason of the intoxication of a person against the seller of the alcohol. However, in opposition, the appellants pointed out that they were not seeking contribution pursuant to such a theory, but rather, were seeking contribution based on an alleged Dram Shop Act violation. In reply, the third-party defendants maintained that the appellants were "not permitted" to do so.

In the order appealed from, the Supreme Court, among other things, granted the third-party defendants' motion to dismiss the third-party complaint. In support of its determination, the Supreme Court cited certain other Supreme Court decisions holding that where an intoxicated person is injured by a tortfeasor, and commences a personal injury action against the tortfeasor, the tortfeasor does not "have" a cause of action for contribution against the seller of the alcohol based on a violation of the Dram Shop Act. However, when accepting the facts as alleged in the third-party complaint as true, according the appellants the benefit of every favorable inference, and determining only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d at 87-88), we conclude that the third-party complaint sets forth a cognizable cause of action for contribution based on an alleged violation of the Dram Shop Act.

The rules governing contribution, as set forth in Dole v Dow Chem. Co. (30 NY2d 143, 147-153) and codified in CPLR article 14, enable a joint tortfeasor who has paid more than his or her equitable share of damages to a plaintiff to recover the excess from the other tortfeasor (see CPLR 1401, 1402; Sommer v Federal Signal Corp., 79 NY2d 540, 555-556). Ordinarily, the other tortfeasor's liability for contribution flows from a breach of a duty owed to the plaintiff (see Sommer v Federal Signal Corp., 79 NY2d at 559; Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 603; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 568 n 5; Garrett v Holiday Inns, 58 NY2d 253, 258). This rule is consistent with the language of CPLR 1401, providing, in ...


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