SEARLEY v. WEGMANS FOOD MARKETS INC

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Supreme Court, Appellate Division, Fourth Department, New York.

Steven SEARLEY, Individually, and Steven Searley, as Administrator of the Estate of Michael Searley, an Infant, Deceased, and Sueanne Searley, Plaintiffs-Appellants, v. WEGMANS FOOD MARKETS, INC., Defendant-Respondent.

    Decided: December 22, 2005

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, GORSKI, SMITH, AND LAWTON, JJ. Brenna & Brenna, PLLC, Rochester (Robert L. Brenna, Jr., of Counsel), for Plaintiffs-Appellants. Ward Norris Heller & Reidy LLP, Rochester (Joseph G. Curran of Counsel), for Defendant-Respondent.

Plaintiffs' son (decedent), who was 17 years of age, allegedly consumed an excessive quantity of alcoholic beverages that had been unlawfully sold to him at one of defendant's supermarkets and, at approximately 4:30 a.m., he was fatally injured when he lost control of the vehicle he was driving.   Plaintiffs commenced this action alleging, inter alia, that decedent was intoxicated at the time of the accident and that defendant violated General Obligations Law §§ 11-100 and 11-101.   Supreme Court granted defendant's motion seeking dismissal of the complaint pursuant to CPLR 3211(a)(7), for failure to state a cause of action.

 It is well settled that General Obligations Law §§ 11-100 and 11-101 do not create a cause of action in favor of one injured as a result of his own intoxicated condition (see Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 636, 543 N.Y.S.2d 18, 541 N.E.2d 18;  Armstrong v. Petsche, 172 A.D.2d 1079, 569 N.Y.S.2d 257;  see also Livelli v. Teakettle Steak House, 212 A.D.2d 513, 622 N.Y.S.2d 109), and it is also well settled that the mere infancy of the injured person does not constitute an exception to that voluntary intoxication rule (see Livelli, 212 A.D.2d 513, 622 N.Y.S.2d 109;  Van Neil v. Hopper, 167 A.D.2d 954, 561 N.Y.S.2d 1019, lv. denied 77 N.Y.2d 804, 568 N.Y.S.2d 347, 569 N.E.2d 1026;  Reuter v. Flobo Enters., 120 A.D.2d 722, 723, 503 N.Y.S.2d 67;  see generally Sheehy, 73 N.Y.2d at 636, 543 N.Y.S.2d 18, 541 N.E.2d 18).   Consequently, the court properly granted those parts of defendant's motion seeking dismissal of the complaint insofar as it asserts any claims by plaintiff father on behalf of decedent's estate.   We conclude, however, that plaintiffs, as parents of decedent, have stated causes of action as parties suffering an injury to their “means of support” (§ 11-100[1];  see § 11-101[1];  Soto v. Montanez, 173 A.D.2d 90, 93-94, 578 N.Y.S.2d 758;  see also Schrader v. Carney, 198 A.D.2d 779, 780, 604 N.Y.S.2d 376;  Raynor v. C.G.C. Grocery Corp., 159 A.D.2d 463, 552 N.Y.S.2d 316;  Reuter, 120 A.D.2d at 723-724, 503 N.Y.S.2d 67).   Thus, we modify the order accordingly.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion in part and reinstating the third and fourth causes of action with respect to plaintiffs individually and as modified the order is affirmed without costs.

MEMORANDUM:

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