Opinion
2012-11-16
Caitlin G. MURPHY, Plaintiff–Respondent, v. Noah COMINSKY, Defendant, and Lawrence Vanderbogart, Defendant–Appellant.
The Law Offices of Edward M. Eustace, White Plains (Christopher Yapchanyk of Counsel), for Defendant–Appellant. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (James W. Cunningham of Counsel), for Plaintiff–Respondent.
The Law Offices of Edward M. Eustace, White Plains (Christopher Yapchanyk of Counsel), for Defendant–Appellant. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (James W. Cunningham of Counsel), for Plaintiff–Respondent.
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries she sustained when her face was bitten by a dog during a party at which alcohol, furnished by defendants, was served. The party was hosted by a minor (host) while his parents were out of town, and the dog belonged to the host's family. For her first cause of action against Lawrence Vanderbogart (defendant), plaintiff alleged that defendant violated General Obligations Law §§ 11–100 and 11–101 (Dram Shop Act) by providing alcohol to minors. Plaintiff further alleged that, as a result of their intoxication, the minors attending the party became rowdy, thereby agitating the dog and causing it to bite plaintiff, and that, as a result of the host's intoxication, he failed to exercise a reasonable degree of care with respect to the dog and the dangers it posed to the guests. In her second cause of action against defendant, plaintiff alleged that he was negligent in providing alcohol to minors. Defendant moved to dismiss the complaint against him on the ground that it failed to state a cause of action ( seeCPLR 3211[a][7] ), and Supreme Court denied the motion.
Defendant contends that because plaintiff may recover for injuries sustained as a result of a dog bite only under a theory of strict liability ( see e.g. Petrone v. Fernandez, 12 N.Y.3d 546, 550, 883 N.Y.S.2d 164, 910 N.E.2d 993), the court erred in denying his motion. We conclude that the court properly denied defendant's motion to dismiss the first cause of action against him, alleging that he violated the Dram Shop Act. New York's Dram Shop Act affords a person injured “by reason of the intoxication” of another person an independent cause of action against the party that unlawfully sold, provided or assisted in procuring alcoholic beverages for such intoxicated person (General Obligations Law §§ 11–100[1]; 11–101[1] ). The statute requires only “some reasonable or practical connection between the [furnishing] of alcohol and the resulting injuries; proximate cause, as must be established in a conventional negligence case, is not required” ( Oursler v. Brennan, 67 A.D.3d 36, 43, 884 N.Y.S.2d 534 [internal quotation marks omitted]; see Adamy v. Ziriakus [appeal No. 1], 231 A.D.2d 80, 88, 659 N.Y.S.2d 623,affd.92 N.Y.2d 396, 681 N.Y.S.2d 463, 704 N.E.2d 216;McNeill v. Rugby Joe's, 298 A.D.2d 369, 370, 751 N.Y.S.2d 241;Bartkowiak v. St. Adalbert's R.C. Church Socy., 40 A.D.2d 306, 310, 340 N.Y.S.2d 137). Accepting the facts alleged in the complaint as true and according plaintiff the benefit of all favorable inferences, as we must in the context of this motion to dismiss, we conclude that plaintiff has stated a legally cognizable cause of action against defendant for a violation of the Dram Shop Act ( see generally Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511).
We further conclude, however, that the court erred in denying defendant's motion to dismiss the second cause of action against him, alleging negligence on defendant's part. There is no common law cause of action for the negligent provision of alcohol in this state ( see Rust v. Reyer, 91 N.Y.2d 355, 358–359, 670 N.Y.S.2d 822, 693 N.E.2d 1074;D'Amico v. Christie, 71 N.Y.2d 76, 84–87, 524 N.Y.S.2d 1, 518 N.E.2d 896; O'Neill v. Ithaca Coll., 56 A.D.3d 869, 872, 866 N.Y.S.2d 809;McGlynn v. St. Andrew Apostle Church, 304 A.D.2d 372, 373, 761 N.Y.S.2d 151,lv. denied100 N.Y.2d 508, 764 N.Y.S.2d 385, 796 N.E.2d 477). We therefore modify the order accordingly.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting that part of defendant Lawrence Vanderbogart's motion to dismiss the second cause of action against him and as modified the order is affirmed without costs.