Opinion
2014-02-19
Cathy SULLIVAN, etc., appellant, v. MULINOS OF WESTCHESTER, INC., et al., respondents, et al., defendants.
Rubert & Gross, P.C., New York, N.Y. (Soledad Rubert of counsel), for appellant. Rosenbaum & Taylor, P.C., White Plains, N.Y. (Dara L. Rosenbaum of counsel), for respondent Mulinos of Westchester, Inc.
Rubert & Gross, P.C., New York, N.Y. (Soledad Rubert of counsel), for appellant. Rosenbaum & Taylor, P.C., White Plains, N.Y. (Dara L. Rosenbaum of counsel), for respondent Mulinos of Westchester, Inc.
Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains, N.Y. (William H. Bave, Jr., of counsel), for respondent Self–Service, Inc., doing business as Trotters Tavern.
PETER B. SKELOS, J.P., PLUMMER E. LOTT, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.
In an action, inter alia, to recover damages for personal injuries and wrongful death, the plaintiff appeals from a judgment of the Supreme Court, Rockland County (Berliner, J.), entered May 23, 2012, which, upon the granting of the separate motions of the defendants Mulinos of Westchester, Inc., and Self–Service, Inc., doing business as Trotters Tavern, pursuant to CPLR 4401, made at the close of evidence, for judgment as a matter of law dismissing the complaint insofar as asserted against each of them, is in favor of those defendants and against her dismissing the complaint insofar as asserted against those defendants.
ORDERED that the judgment is reversed, on the law, with one bill of costs to the appellant payable by the respondents appearing separately and filing separate briefs, the separate motions of the defendants Mulinos of Westchester, Inc., and Self–Service, Inc., doing business as Trotters Tavern, pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against each of them are denied, and the complaint is reinstated insofar as asserted against those defendants.
On February 11, 2005, at approximately 1:45 a.m., while traveling over the Tappan Zee Bridge, the plaintiff's decedent, John Sullivan (hereinafter Sullivan), lost control of the vehicle he was operating and was killed when it struck a lamp pole and went over a guide rail and into the Hudson River. Sullivan, who allegedly was intoxicated at the time of his death, had patronized establishments owned by the defendant Mulinos of Westchester, Inc. (hereinafter Mulinos), and Self–Service, Inc., doing business as Trotters Tavern (hereinafter Trotters Tavern), prior to the accident. The plaintiff commenced this action against, among others, Mulinos and Trotters Tavern, contending, inter alia, that they violated General Obligations Law § 11–101 by selling alcoholic beverages to Sullivan while he was visibly intoxicated.
At trial, the plaintiff presented testimony from, among others, the person who met Sullivan at Mulinos and later drove him to Trotters Tavern, and a patron who socialized with Sullivan for “several hours” at Trotters Tavern. The plaintiff also presented the testimony of the Rockland County Medical Examiner. At the conclusion of the plaintiff's case, Mulinos and Trotters Tavern separately moved for judgment as a matter of law dismissing the complaint insofar as asserted against each of them for failure to establish a prima facie case. The Supreme Court granted both motions and, in the judgment appealed from, dismissed the complaint insofar as asserted against Mulinos and Trotters Tavern.
“A trial court's grant of a CLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party” ( Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346). Applying this standard, the Supreme Court improperly granted the separate motions by Mulinos and Trotters Tavern ( see Sutter v. Inserra Supermarkets, Inc., 104 A.D.3d 759, 960 N.Y.S.2d 431).
General Obligations Law § 11–101, known as the Dram Shop Act, provides that a party that “unlawfully” sells alcohol to another person is liable for injuries caused by reason of that person's intoxication ( see Adamy v. Ziriakus, 92 N.Y.2d 396, 400, 681 N.Y.S.2d 463, 704 N.E.2d 216;Romano v. Stanley, 90 N.Y.2d 444, 661 N.Y.S.2d 589, 684 N.E.2d 19;LaCatena v. M.C. & E.D. Beck, Inc., 35 A.D.3d 388, 825 N.Y.S.2d 727). Under Alcoholic Beverage Control Law § 65(2), it is unlawful to furnish an alcoholic beverage to “[a]ny visibly intoxicated person” ( see Adamy v. Ziriakus, 92 N.Y.2d at 400, 681 N.Y.S.2d 463, 704 N.E.2d 216).
Contrary to the Supreme Court's conclusion, accepting the evidence presented at trial by the plaintiff as true, and according it every favorable inference, the plaintiff established, prima facie, that there was a “reasonable or practical connection” between the alleged unlawful sale of alcohol at Mulinos and the resulting damages ( Sullivan v. Mulinos of Westchester, Inc., 73 A.D.3d 1018, 1020, 901 N.Y.S.2d 663 [internal quotation marks omitted]; see McArdle v. 123 Jackpot, Inc., 51 A.D.3d 743, 746, 858 N.Y.S.2d 692;McNeill v. Rugby Joe's, 298 A.D.2d 369, 370, 751 N.Y.S.2d 241;Catania v. 124 In–To–Go, Corp., 287 A.D.2d 476, 477, 731 N.Y.S.2d 207;Adamy v. Ziriakus, 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;Church v. Burdick, 227 A.D.2d 817, 818, 642 N.Y.S.2d 426;Johnson v. Plotkin, 172 A.D.2d 88, 92, 577 N.Y.S.2d 329). Although the Medical Examiner acknowledged that the alcohol that Sullivan consumed at Mulinos would have been metabolized by the time of the accident, “assum[ing] that [he] did not consume anymore alcohol that evening,” she also opined, based on the testimony of the witnesses and Sullivan's blood alcohol content at the time of the accident, that Sullivan did indeed consume numerous drinks after leaving Mulinos. Considering the evidence presented, a jury could have reasonably concluded that Sullivan remained intoxicated throughout the night, that the alcohol consumed at Mulinos contributed to his intoxication to an appreciable degree, and thus, that there was a reasonable and practical connection between the alcohol served at Mulinos and the damages sustained in the accident ( see McArdle v. 123 Jackpot, Inc., 51 A.D.3d at 746, 858 N.Y.S.2d 692;McNeill v. Rugby Joe's, 298 A.D.2d at 370, 751 N.Y.S.2d 241;Catania v. 124 In–To–Go, Corp., 287 A.D.2d at 477, 731 N.Y.S.2d 207).
The evidence presented by the plaintiff, when accepted as true and afforded every favorable inference, was also sufficient to establish, prima facie, that Sullivan was furnished alcohol at Trotters Tavern while he was visibly intoxicated ( see Adamy v. Ziriakus, 92 N.Y.2d at 400, 681 N.Y.S.2d 463, 704 N.E.2d 216;Sullivan v. Mulinos of Westchester, Inc., 73 A.D.3d at 1020, 901 N.Y.S.2d 663). The Medical Examiner's opinion, coupled with testimony from the person who met Sullivan at Mulinos and later drove him to Trotters Tavern, was sufficient to establish that Sullivan consumed alcohol at Trotters Tavern and that he was visibly intoxicated at the time ( see Adamy v. Ziriakus, 92 N.Y.2d at 400, 681 N.Y.S.2d 463, 704 N.E.2d 216;Sullivan v. Mulinos of Westchester, Inc., 73 A.D.3d at 1020, 901 N.Y.S.2d 663). Moreover, considering the circumstantial evidence presented, it would have been reasonable and permissible for a jury to infer that Trotters Tavern furnished the alcohol that Sullivan consumed ( see Adamy v. Ziriakus, 92 N.Y.2d at 402–403, 681 N.Y.S.2d 463, 704 N.E.2d 216).
As the plaintiff made out a prima facie case against both Mulinos and Trotters Tavern for violations of General Obligations Law § 11–101, those defendants' separate motions for judgment as a matter of law should have been denied and the matter should have been submitted to the jury.