Opinion
November 10, 1999
Tabner, Ryan Keniry (William J. Keniry of counsel), Albany, for appellants.
Adams, Dayter Sheehan (Robert L. Adams of counsel), Albany, for respondents.
Before: CARDONA, P.J., MIKOLL, YESAWICH JR., PETERS and MUGGLIN, JJ.
MEMORANDUM AND ORDER
Appeal from an order of the Supreme Court (Canfield, J.), entered September 29, 1998 in Rensselaer County, which denied a motion by defendants James A. Bodah Sr. and James J. Bodah for summary judgment dismissing the complaint against them.
On April 30, 1993, plaintiff Michael E. Blair, a City of Troy Police Officer, sustained head injuries when struck on the head by a rock thrown by 20-year-old defendant William Barker. The incident occurred as Blair and other police officers were quelling a disturbance at an outdoor birthday party given for defendant James J. Bodah on the property owned by his father, defendant James A. Bodah Sr. (hereinafter collectively referred to as defendants). In addition to Barker, James J. Bodah was also arrested and ultimately pleaded guilty to disorderly conduct.
As a result of this act Barker was convicted of assault in the second degree (see, People v. Barker, 223 A.D.2d 899,lv denied 88 N.Y.2d 964).
Blair and his wife, derivatively, commenced this action pursuant to General Municipal Law § 205-e, alleging that Blair's injuries stemmed from defendants' violations of State and local laws in hosting the birthday party. After joinder of issue and subsequent discovery, Supreme Court denied defendants' motion for summary judgment. Defendants appeal.
We reverse. General Municipal Law § 205-e permits recovery by a police officer for injuries occurring "directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person in failing to comply with the requirements of any applicable statute, ordinance, rule, order, or requirement of Federal, State or municipal law" (Hudson v. Boutin, 239 A.D.2d 624, 625). Unlike Supreme Court, we do not find triable issues of fact exist regarding whether defendants' failure to comply with various State and local laws as charged in the complaint directly or indirectly caused Blair's injuries.
In their complaint, plaintiffs allege, inter alia, that defendants sold alcoholic beverages at the party and in so doing breached Alcoholic Beverage Control Law §§ 100 Alco. Bev. Cont. and 103 Alco. Bev. Cont.. Although the deposition testimony established that beer was indeed served at the party and, further, that money was collected from some partygoers, it is not disputed that Barker, despite having consumed at least one beer that evening, did not pay for the beer; James J. Bodah gave it to him. But, even if beer was sold in contravention of State law, that transgression did not directly or indirectly cause Blair's injuries.
Plaintiffs also assert claims based upon violations of General Obligations Law §§ 11-100 Gen. Oblig. and 11-101 Gen. Oblig. as a predicate for imposing liability under General Municipal Law § 205-e. These claims must also fail, as plaintiffs have not shown that defendants served Barker alcohol while the latter was intoxicated (see, Campbell v. Lorenzo's Pizza Parlor, 172 A.D.2d 478, 479, lv denied 78 N.Y.2d 863). Moreover, although James J. Bodah was convicted after a guilty plea to disorderly conduct, this violation did not directly or indirectly cause Blair's injury; there is no link between Bodah's conduct giving rise to his plea and Barker's act of throwing the rock.
Cardona, P.J., Mikoll, Peters and Mugglin, JJ., concur.
ORDERED that the order is reversed, on the law, with costs, motion granted, summary judgment awarded to defendants James A. Bodah Sr. and James J. Bodah and complaint dismissed against them.