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Endieveri v. Lett

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 15, 2002
299 A.D.2d 879 (N.Y. App. Div. 2002)

Opinion

CA 02-00840

November 15, 2002.

Appeal from an order of Supreme Court, Onondaga County (Centra, J.), entered July 18, 2001, which granted defendant's motion for summary judgment dismissing the complaint.

COTE LIMPERT, SYRACUSE (HANNAH JONES OF COUNSEL), FOR PLAINTIFF-APPELLANT.

SMITH, SOVIK, KENDRICK SUGNET, P.C., SYRACUSE (MARY KENDRICK-GAFFNEY OF COUNSEL), FOR DEFENDANT-RESPONDENT.

PRESENT: PINE, J.P., WISNER, HURLBUTT, KEHOE, AND BURNS, JJ.


MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum:

Plaintiff's decedent was killed when his vehicle was struck by another vehicle. The driver of the other vehicle was thereafter convicted of manslaughter in the second degree and driving while intoxicated, and plaintiff commenced this action alleging that defendant had served an excessive amount of alcohol to that driver. Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint where, as here, there is no allegation that defendant sold alcohol to the driver of the other vehicle. The Court of Appeals has made clear that there is "no basis for departing from the consistent interpretation of lower courts that the Dram Shop Act requires a commercial sale of alcohol" ( D'Amico v. Christie, 71 N.Y.2d 76, 84). "[I]f there is to be a change in what the Legislature has clearly written it should come from the Legislature" ( id).


Summaries of

Endieveri v. Lett

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 15, 2002
299 A.D.2d 879 (N.Y. App. Div. 2002)
Case details for

Endieveri v. Lett

Case Details

Full title:ANTHONY F. ENDIEVERI, AS ADMINISTRATOR OF THE ESTATE OF STEVEN A…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 15, 2002

Citations

299 A.D.2d 879 (N.Y. App. Div. 2002)
750 N.Y.S.2d 222