MURPHY, CAITLIN G. v. COMINSKY, NOAH ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1037
CA 12-00273
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.
CAITLIN G. MURPHY, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
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.
Appeal from an order of the Supreme Court, Onondaga County
(Deborah H. Karalunas, J.), entered October 25, 2011. The order,
insofar as appealed from, denied the motion of defendant Lawrence
Vanderbogart to dismiss the complaint against him pursuant to CPLR
3211 (a) (7).
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.
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
(see CPLR 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
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CA 12-00273
strict liability (see e.g. Petrone v Fernandez, 12 NY3d 546, 550), 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 AD3d 36, 43 [internal quotation marks omitted]; see Adamy v
Ziriakus [appeal No. 1], 231 AD2d 80, 88, affd 92 NY2d 396; McNeill v
Rugby Joe’s, 298 AD2d 369, 370; Bartkowiak v St. Adalbert’s R. C.
Church Socy., 40 AD2d 306, 310). 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 NY2d 83, 87-88).
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 NY2d 355, 358-359; D’Amico v Christie, 71 NY2d 76,
84-87; O’Neill v Ithaca Coll., 56 AD3d 869, 872; McGlynn v St. Andrew
Apostle Church, 304 AD2d 372, 373, lv denied 100 NY2d 508). We
therefore modify the order accordingly.
Entered: November 16, 2012 Frances E. Cafarell
Clerk of the Court