O'Rourke v Chew

[*1] O'Rourke v Chew 2012 NY Slip Op 51454(U) Decided on July 26, 2012 Supreme Court, Suffolk County Whelan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 26, 2012
Supreme Court, Suffolk County

Devin K. O'Rourke, ERIN JACOBS, by her mother and natural guardian, LYNN JACOBS, LYNN JACOBS, individually, and ANTHONY DePAOLA, Plaintiffs,

against

Kendra J. Chew, HESS MART, INC., HESS REALTY CORP. and HESS CORPORATION, Defendants.



06-28538



ROSENBERG & GLUCK, LLP

Attorney for Plaintiff O'Rourke1176 Portion Road

Holtsville, New York 11742

CHARLES G. EICHINGER & ASSOCIATES

Attorney for Plaintiffs Jacobs

1601 Veterans Memorial Highway, Suite 510

Islandia, New York 11749

GERALD L. LOTTO, ESQ.

Attorney for Plaintiff DePaola

3330 Vets Memorial Highway

Bohemia, New York 11716

KELLY, LUGLIO & ARCURI, LLP

Attorney for Defendant Kendra J. Chew

2023 Deer Park Avenue

Deer Park, New York 11729

WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP

Attorney for Defendants Hess

150 East 42nd Street

New York, New York 10017

Thomas F. Whelan, J.

ORDERED that this motion by defendants Hess Mart Inc. and Hess Corporation i/s/h/a Hess Realty Corp. for an order pursuant to CPLR 3212 granting summary judgment in their favor dismissing all claims and cross-claims as against them is determined herein.

This consolidated action arises from a single-car motor vehicle accident that occurred on September 13, 2006 at approximately 8:51 p.m. on Sound Avenue at or near its intersection with Horton Avenue in the Town of Riverhead, New York. Plaintiffs, Devin K. O'Rourke (O'Rourke), then 18 years of age, Erin Jacobs, then 16 years of age, and Anthony DePaola (DePaola), then 17 years of age, were passengers in a vehicle operated by the then 18-year-old Joseph S. Chew (Chew) that struck a utility pole. The vehicle was owned by Chew's grandmother, defendant Kendra J. Chew. Chew was taken to the hospital from the accident scene and was pronounced dead that evening at 9:30 p.m.

Earlier that evening, at approximately 6 p.m., the aforementioned plaintiffs, Chew, and non-party Lindsay Sadowski (the teenagers) had gathered at plaintiff O'Rourke's house and decided to buy beer from the Hess Mart on Route 58, in Riverhead, New York. Finding that they had insufficient money, plaintiff O'Rourke devised a plan to ask his mother for money to purchase soda at the Hess Mart and to apply the change from the purchase of soda to the purchase of beer. Plaintiff O'Rourke's mother gave money and Chew drove plaintiff DePaola and Lindsay Sadowski to the Hess Mart. Chew came out of the Hess Mart with two 12-packs of beer [*2]together with the soda. None of the plaintiffs were with Chew or observed him at the time that he allegedly purchased the beer. Chew, plaintiff DePaola and Lindsay Sadowski returned to plaintiff O'Rourke's house with the beer and soda. The teenagers eventually drank some of the beer. According to plaintiff DePaola they began drinking at plaintiff O'Rourke's house and according to plaintiff O'Rourke they began drinking later in a tree house of another teenager. According to plaintiffs O'Rourke and DePaola, Chew drank two to three beers prior to the accident. The accident occurred after they left the tree house and dropped off Lindsay Sadowski and were en route to Erin Jacob's house.

The plaintiff passengers in Chew's vehicle seek damages for injuries they sustained in the accident. Plaintiff, Lynn Jacobs, the mother of plaintiff Erin Jacobs, seeks to recover for the loss of services of her daughter as well as the hospital and medical expenses she incurred on her daughter's behalf. Each of the plaintiffs allege that employees of the Hess Mart sold two 12-packs of beer to the underage Chew in violation of General Obligations Law §§ 11-100 inasmuch as the employees knew or reasonably believed Chew to be underage and in violation of General Obligations Law § 11-101 (the Dram Shop Act). Continuing, the plaintiffs allege that Chew was visibly intoxicated, the employees knew that he was intoxicated, that Chew consumed the beer, and the Hess Mart employees contributed to Chew's intoxication.

Defendants Hess Mart Inc. and Hess Corporation i/s/h/a Hess Realty Corp. (Hess) answered and asserted a cross claim against defendant Kendra J. Chew for contribution and indemnification. By her answer, defendant Kendra J. Chew asserts a cross-claim against Hess for contribution and indemnification. The Court's computerized records indicate that the note of issue in this action was filed on September 30, 2011.

The circumstances surrounding the interface between Chew and defendant Hess on the date of the accident are described in the deposition testimony of various parties. The transcripts thereof, on which Hess relies, reveal that none of the plaintiffs were present in the Hess Mart or observed Chew at the time of his purchase of the beer at issue. While the deposition transcripts indicate that plaintiff DePaola was in the Hess Mart with Chew prior to the alleged sale and that he put two 12-packs of soda on the counter, DePaola left the store prior to the purchase of any beer. Chew then came out of the Hess Mart with two 12-packs of soda and two 12-packs of beer. It was, however, plaintiff DePaola, who carried the two 12-packs of beer from the door of the Hess Mart to the vehicle. The deposition testimony of the various parties reveal that on prior occasions Chew had used a "fake ID," an expired driver's license, to purchase beer at the Hess Mart and at other times Hess employees allegedly recognized Chew and thus did not "card" him. The deposed Hess employees and former employee Muhammad Imran testified as to having no recollection of Chew or of the alleged sale.

Hess now moves for summary judgment dismissing all claims and cross-claims as against them on the grounds that there is no evidence that Chew consumed any alcohol prior to entering the Hess Mart nor evidence that he was visibly intoxicated at that time. Hess further asserts that there is no evidence that the employees at the Hess Mart knew or had reason to believe that Chew was under 21 years of age based on his prior use of false identification. Hess also asserts that [*3]plaintiff O'Rourke is precluded from recovering under the Dram Shop Act inasmuch as he admittedly contributed to the procurement of the beer by using the change from the money that his mother had given to purchase soda for the purchase of the beer. Hess further asserts that plaintiff Lynn Jacobs, the mother of plaintiff Erin Jacobs, cannot recover for the loss of services of her daughter because the Dram Shop Act does not provide for such recovery. In support of the motion, Hess submits, among other things, the pleadings, the deposition transcripts of plaintiffs O'Rourke, Erin Jacobs, and DePaola, of non-party witness Annette Amato, of Detective David Freeborn, and of Aman Khan and Khalid Khattak on behalf of Hess, the police accident report with notarized witness statements, and the Town of Riverhead Police Department Death Report for Chew, indicating that he was pronounced dead at 9:30 p.m. on September 13, 2006, and the attached toxicologic report from an examination on September 14, 2006 indicating a blood alcohol level of 0.03 percent.

Plaintiff Erin Jacobs and her mother Lynn Jacobs oppose the motion contending that the motion is untimely pursuant to CPLR 3212 (a) and that, in any event, Hess failed to meet its burden of demonstrating that it did not sell alcohol to the underage Chew which caused his intoxication or impairment which has some reasonable or practical connection to Erin Jacobs' injuries. They note that Hess proffered no deposition testimony concerning Chew's purchase of beer and no video tape of the cash register from the date of the accident. Plaintiffs Jacobs also contend that Hess raised an issue of fact as to Chew's intoxication under the Dram Shop Act by submitting evidence that Chew's blood alcohol level was 0.03 percent such that he was per se legally impaired pursuant to Vehicle and Traffic Law § 1192-a. They further argue that the bar against recovery for loss of services only applies to the spouse or parent of the allegedly intoxicated tortfeasor. In support of their opposition, plaintiffs Jacobs submit the deposition transcript of non-party witness Lindsay Sandowski, the report of Hess's engineering experts on accident reconstruction, and the deposition transcripts of non-party witness Muhammad Imran and Daniel Macauley on behalf of Hess.

Plaintiff DePaola joins in the opposition of plaintiffs Jacobs. Plaintiff O'Rourke also joins in the opposition of plaintiffs Jacobs adding that there are multiple issues concerning the reliability of the blood alcohol test inasmuch as Hess failed to include an affidavit from an expert witness explaining the relevance of the test and the effect on the test of drawing the blood 14 ½ hours after the accident and 14 hours after Chew was pronounced dead. Defendant Kendra J. Chew opposes the motion arguing that Hess submitted conflicting evidence insufficient to sustain its burden.

In reply, Hess argues that its motion is timely and that it cannot be held liable under the Dram Shop Act inasmuch as Chew was not intoxicated or impaired at the time of the accident pursuant to Vehicle and Traffic Law § 1195 (2) (a) and submits the affidavit of a physician with a specialty in toxicology. Hess also argues that the evidence demonstrates that Chew was a regular customer at the Hess Mart and had used a false identification on prior occasions such that Hess had no reason to believe that Chew was underage. Hess further asserts that plaintiff O'Rourke cannot recover under the Dram Shop Act because he admittedly used the change from the money [*4]his mother had given to purchase soda towards the purchase of beer and that plaintiff Lynn Jacobs cannot recover for the loss of services under the Dram Shop Act.

For the reasons stated below, this motion by Hess is granted solely with respect to the claims of plaintiff O'Rourke and the loss of services claims of plaintiff Lynn Jacobs and is denied with respect to all other claims.

General Obligations Law §§ 11—100 and 11—101 are an exception to the common-law rule that a person consuming alcoholic beverages is solely responsible for injuries caused by his or her own intoxication (see Sherman v Robinson , 80 NY2d 483, 591 NYS2d 974 [1992]; D'Amico v Christie, 71 NY2d 76, 524 NYS2d 1 [1987]). The Dram Shop Act applies only to the commercial sale of alcoholic beverages and provides a cause of action for injuries caused by "any intoxicated person" against a person who unlawfully sells alcoholic beverages to or unlawfully assists in procuring alcoholic beverages for "such intoxicated person" (see General Obligations Law § 11—101[1]; id.). "In 1983, the Legislature supplemented the Dram Shop Act by imposing responsibility on any provider unlawfully furnishing alcoholic beverages to minors, or unlawfully assisting in procuring such beverages for them, when such [minor person's] intoxication' causes plaintiff's injury (General Obligations Law § 11—100 [1]). This statute, intended to parallel those [provisions] contained in New York's Dram Shop Statute'..., extended dram-shop-type liability without the necessity of a commercial sale" (Sherman v Robinson, 80 NY2d 483, 486-487, 591 NYS2d 974).

A commercial vendor cannot be held liable under General Obligations Law § 11—100 or §11—101 absent proof that it sold alcoholic beverages directly to the alleged tortfeasor (General Obligations Law § 11—101 [1]), or that it unlawfully furnished such beverages to an underage person alleged to be the tortfeasor (General Obligations Law § 11—100 [1]; see Stewart v Taylor, 167 AD2d 846, 562 NYS2d 253 [4th Dept 1990], appeal denied 77 NY2d 805, 568 NYS2d 913 [1991]; see also Sherman v Robinson, 80 NY2d 483, 591 NYS2d 974; Rann v Hamilton, 194 AD2d 599, 599 NYS2d 51 [2d Dept 1993]). To establish a cause of action under the Dram Shop Act, a plaintiff is required to prove that the defendant sold alcohol to a person who was visibly intoxicated and that the sale of that alcohol bore some reasonable or practical connection to the resulting damages (see Sullivan v Mulinos of Westchester, Inc., 73 AD3d 1018, 901 NYS2d 663 [2d Dept 2010]; McArdle v 123 Jackpot, Inc., 51 AD3d 743, 858 NYS2d 692 [2d Dept 2008]; McNeill v Rugby Joe's, 298 AD2d 369, 751 NYS2d 241 [2d Dept 2002]). An underage driver's intoxication at the time of the sale is not relevant, however, intoxication at the time of the accident is a relevant factor (see General Obligations Law § 11—101[1]; Johnson v Plotkin, 172 AD2d 88, 577 NYS2d 329 [3d Dept 1991], appeal dismissed 79 NY2d 977, 583 NYS2d 195 [1992]; Powers v Niagara Mohawk Power Corp., 129 AD2d 37, 516 NYS2d 811 [3d Dept 1987]).

An injured party who has procured the alcoholic beverage for the person whose intoxication allegedly caused the accident has no cognizable cause of action based upon a violation of the Dram Shop Act (see General Obligations Law § 11-101; Alcoholic Beverage [*5]Control Law § 65; Vandenburg v Brosnan, 129 AD2d 793, 514 NYS2d 784 [2d Dept 1987], affd 70 NY2d 940, 524 NYS2d 672 [1988]). In addition, General Obligations Law §§ 11-101 and 11-100 do not permit the recovery of damages for loss of services of the intoxicated adult or minor, respectively, who caused the accident (see Valicenti v Valenze, 68 NY2d 826, 507 NYS2d 616 [1986]; Sullivan v Mulinos of Westchester, Inc., 73 AD3d 1018, 901 NYS2d 663 [2d Dept 2010]; Rudden v Bernstein, 61 AD3d 736, 878 NYS2d 373 [2d Dept 2009], lv denied 17 NY3d 712, 932 NYS2d 427 [2011]; Dunphy v J & I Sports Enters., 297 AD2d 23, 748 NYS2d 595 [2d Dept 2002]).

Initially, the Court notes that, contrary to plaintiffs' contentions, the motion is timely pursuant to CPLR 3212 (a) inasmuch as the affidavit of service of the motion indicates that it was served by mail on January 27, 2012, one day prior to the 120th day after the filing of the note of issue (see CPLR 2103 [b] [2]; CPLR 3212 [a]).

The plaintiffs' claims and Hess's arguments in response to those claims regarding whether the underage Chew was visibly intoxicated at the time of sale are irrelevant under the circumstances of this action (see Johnson v Plotkin, 172 AD2d 88, supra; Powers v Niagara Mohawk Power Corp., 129 AD2d 37, supra). In addition, Hess's assertion that Chew used false identification to purchase the beer is not supported by sufficient proof in admissible form to warrant an award of summary judgment on that issue (see Johnson v Verona Oil, Inc., 36 AD3d 991, 827 NYS2d 747 [3d Dept 2007]). The court thus denies this motion to the extent predicated upon these grounds.

Hess' alternative claim that Chew was not intoxicated at the time of the accident and by reasons thereof the sale of the beer had no reasonable or practical connection to the accident is not as easily dispatched. Resolution thereof requires an analysis of various provisions of the Vehicle and Traffic Law including, §§ 1192; 1195 (2); 1192-a and 1194-a.

Vehicle and Traffic law § 1192 entitled, "Operating a motor vehicle while under the influence of alcohol or drugs" provides: 1. Driving while ability impaired. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.

Vehicle and Traffic Law § 1195 (2) provides, " Probative value. The following effect shall be given to evidence of blood-alcohol content, as determined by such tests, of a person [*6]arrested for violation of section eleven hundred ninety-two of this article: (a) Evidence that there was .05 of one per centum or less by weight of alcohol in such person's blood shall be prima facie evidence that the ability of such person to operate a motor vehicle was not impaired by the consumption of alcohol, and that such person was not in an intoxicated condition."

The evidence submitted by Hess in support of its argument consists of deposition testimony from Detective Freeborn that Chew's blood alcohol level of 0.03 in the toxicology report did not meet the criteria for being legally impaired, the toxicology report based on an examination on September 14, 2006, deposition testimony from plaintiffs that Chew was driving at an excessive rate of speed just prior to the accident despite being told to slow down, and the absence of deposition testimony indicating that Chew was showing signs of intoxication prior to the accident. Thus, Hess submitted evidence demonstrating that Chew was not intoxicated at the time of the accident thereby breaking any nexus between the sale of the beer and the accident.

In opposition, plaintiff's rely on Vehicle and Traffic Law § 1192-a to establish that Chew was per se impaired at the time of the accident. Vehicle and Traffic Law § 1192-a entitled, "Operating a motor vehicle after having consumed alcohol; under the age of twenty-one; per se" provides: No person under the age of twenty-one shall operate a motor vehicle after having consumed alcohol as defined in this section. For purposes of this section, a person under the age of twenty-one is deemed to have consumed alcohol only if such person has .02 of one per centum or more but not more than .07 of one per centum by weight of alcohol in the person's blood, as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article. Any person who operates a motor vehicle in violation of this section, and who is not charged with a violation of any subdivision of section eleven hundred ninety-two of this article arising out of the same incident shall be referred to the department for action in accordance with the provisions of section eleven hundred ninety-four-a of this article. "

"Vehicle and Traffic Law § 1192-a and its procedural companion, Vehicle and Traffic Law § 1194-a, were enacted in 1996 to address the problem of those under the age of 21 who drink and drive but whose consumption of alcohol is insufficient to be charged under any provision of Vehicle and Traffic Law § 1192" (People v Pesantes, 10 Misc 3d 676, 809 NYS2d 859 [Crim Ct, New York County 2005]). Thus, Vehicle and Traffic Law § 1192-a is not a benchmark for determining per se impairment of minors and plaintiffs' reliance on it for said purpose is misplaced.

However, the plaintiffs' submissions do raise an issue of fact as to the reliability of the reported toxicology results, which were based on an examination performed hours after the accident and Chew's death to establish Chew's level of intoxication at the time of the accident, noting that Hess did not submit any evidence from an expert on the matter (see e.g. Adamy v [*7]Ziriakus, 92 NY2d 396, 681 NYS2d 463[1998]; Roy v Volonino, 262 AD2d 546, 694 NYS2d 399; Smith v State, 191 Misc 2d 553, 742 NYS2d 792 [Ct Cl 2002]). In reply, Hess submits the affidavit of their medical expert on toxicology. However, the Court declines to consider said affidavit inasmuch as it constitutes new matter that should have been included as part of the papers initially submitted by Hess thereby affording plaintiffs the opportunity to respond to its contents (see CPLR 2214 [c]; Wosyluk v L.T.L. Developers, Inc., 147 AD2d 475, 538 NYS2d 478 [2d Dept 1989]). Under these circumstances, the court concludes that issues of fact remain as to whether Chew was intoxicated at the time of the accident and thus whether "some reasonable or practical connection" existed between the sale of alcohol at the Hess Mart and the resulting damages. The court thus finds that Hess is not entitled to summary judgment dismissing the complaint on these grounds (see Sullivan v Mulinos of Westchester, Inc.,73 AD3d 1018, supra; Johnson v Verona Oil, Inc., 36 AD3d 991, supra; Johnson v Plotkin, 172 AD2d 88, supra).

Regarding whether plaintiff O'Rourke is precluded from recovering under the Dram Shop Act based on his level of involvement in the purchase of the beer, the term "procure" is not defined in either the General Obligations Law or the Alcoholic Beverage Control Law and the term must therefore be given its ordinary and usual meaning, which is "to get possession of: obtain, acquire ... to get possession of by particular care or effort" (see Slocum v D's & Jayes Val. Rest. & Café, Inc., 182 AD2d 981, 982, 582 NYS2d 544 [3d Dept 1992]; see also Fox v Clare Rose Beverage, Inc., 262 AD2d 526, 527, 692 NYS2d 658 [2d Dept 1999], lv denied 94 NY2d 755, 701 NYS2d 711 [1999]). The term "procure" includes using one's own money to purchase alcohol for another, contributing money to the purchase of the alcohol, and giving away alcohol to another after purchasing it with one's own money (see Slocum v D's & Jayes Val. Rest. & Café, Inc., 182 AD2d 981, 982, 582 NYS2d 544; Dodge v Victory Mkts., 199 AD2d 917, 606 NYS2d 345 [3d Dept 1993]; Prunty v Keltie's Bum Steer, 163 AD2d 595, 559 NYS2d 354 [2d Dept 1990]; Campbell v Step/Lind Rest. Corp., 143 AD2d 111, 531 NYS2d 576 [2d Dept 1988]; Vandenburg v Brosnan, 129 AD2d 793, 514 NYS2d 784; see also Fox v Clare Rose Beverage, Inc., 262 AD2d 526, 527, supra). Here, based on the admission by plaintiff O'Rourke that he devised a plan for the use of change from his mother's money for the purchase of the beer and the successful execution of the plan, the court finds that plaintiff O'Rourke's actions and involvement effectively amounted to procurement of the beer which bars his recovery under the Dram Shop Act (see Campbell v Step/Lind Rest. Corp., 143 AD2d 111, supra; Vandenburg v Brosnan, 129 AD2d 793, supra). Therefore, Hess is granted summary judgment dismissing the claims of plaintiff O'Rourke.

In addition, Hess is granted summary judgment dismissing the loss of services claim by plaintiff Lynn Jacobs inasmuch as damages resulting from the loss of services cannot be recovered under General Obligations Law § 11-100 or the Dram Shop Act (see Sullivan v Mulinos of Westchester, Inc., 73 AD3d 1018, supra; Rudden v Bernstein, 61 AD3d 736, supra; McArdle v 123 Jackpot, Inc., 51 AD3d 743, supra; McCauley v Carmel Lanes Inc., 178 AD2d 835, 577 NYS2d 546 [3d Dept1991]). The phrase "or otherwise" in the Dram Shop Act does not include such damages (see Valicenti v Valenze, 68 NY2d 826, 829, supra; McArdle v 123 [*8]Jackpot, Inc., 51 AD3d 743, supra; see General Obligations Law § 11-101 [1]). Contrary to the assertions of plaintiffs Jacobs, the viability of a derivative claim for loss of services is not dependent on the derivative party's relationship to the allegedly intoxicated tortfeasor. Rather, loss of services was not allowed under the common law and the Dram Shop Act made no provision for its recovery (see Valicenti v Valenze, 68 NY2d 826, supra; McArdle v 123 Jackpot, Inc., 51 AD3d 743, supra; Ray v Galloway's Café, 221 AD2d 612, 634 NYS2d 495 [2d Dept 1995]).

Accordingly, defendant's motion for summary judgment is granted solely with respect to dismissal of the claims of plaintiff O'Rourke and the loss of services claim by plaintiff Lynn Jacobs and is denied with respect to the remaining claims.

Dated:___________________________________________________THOMAS F. WHELAN, J.S.C.