DUNPHY v. II

Reset A A Font size: Print

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

Hillary DUNPHY, Appellant, v. J & I SPORTS ENTERPRISES, INC., d/b/a Parrot Heads, Defendant, Lily Flanagan's II, Inc., d/b/a Lily Flanagan's, Respondent.

Decided: August 19, 2002

A. GAIL PRUDENTI, P.J., DAVID S. RITTER, LEO F. McGINITY, HOWARD and MILLER, JJ. William F. Farrell (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellant. Yoeli & Gottlieb, LLP, New York, N.Y. (Michael Yoeli of counsel), for respondent.

The plaintiff is seeking reimbursement for certain medical expenses incurred by her adult son.   The theory upon which she seeks such recovery, that is, the defendants' alleged violation of the “Dram Shop Act” (General Obligations Law §§ 11-100, 11-101), is one which would not have been available to the plaintiff's son himself, whose own intoxication led to the injuries which necessitated medical treatment (see Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 543 N.Y.S.2d 18, 541 N.E.2d 18;  Livelli v. Teakettle Steak House, 212 A.D.2d 513, 622 N.Y.S.2d 109;  Rutledge v. Rockwells of Bedford, 200 A.D.2d 36, 613 N.Y.S.2d 179).   Considering that the injured intoxicated person himself has no right to recover under the “Dram Shop Act” for medical expenses he incurred, we see no reason to recognize a right to such recovery by his mother, or by anyone else who gratuitously pays such expenses.

The plaintiff's son, David Dunphy (hereinafter Dunphy), was injured in an automobile accident which occurred on May 10, 1996, 16 days before his 21st birthday.   The complaint alleges that the defendants violated both General Obligation Laws §§ 11-100 and 11-101 in illegally furnishing or selling alcohol to Dunphy within the hours that preceded the accident.   The plaintiff seeks to recover damages relating to her alleged past and future loss of the “comfort of [David Dunphy's] services, society, and attention,” and relating to her past and future payment of medical costs he incurred as a result of his injuries.

The defendant Lily Flanagan's II, Inc., d/b/a Lily Flanagan's, moved to limit the amount of the plaintiff's recovery to “the period of time prior to the plaintiff's son becoming 21 years old.”   Counsel argued that the plaintiff had no duty to pay the medical expenses of or otherwise support her son after his 21st birthday (see Bani-Esraili v. Lerman, 69 N.Y.2d 807, 513 N.Y.S.2d 382, 505 N.E.2d 947).   The attorney for the plaintiff opposed the motion, arguing that, under the statutes noted above, the plaintiff's right to recover for the medical expenses she paid for did not depend on any legal obligation on her part to pay such expenses relying on Ray v. Galloway's Cafe, 221 A.D.2d 612, 634 N.Y.S.2d 495.   The Supreme Court granted the motion to the extent indicated.   This appeal followed.

 The statutes referred to above (General Obligations Law §§ 11-100, 11-101), commonly known as the “Dram Shop Act,” create causes of action on behalf of any person “who shall be injured in person, property, means of support or otherwise” by an intoxicated person under the circumstances defined in each statute respectively.   Being in derogation of the common law, these statutes are to be strictly construed (see Reickert v. Misciagna, 183 A.D.2d 151, 154, 590 N.Y.S.2d 100;  Delamater v. Kimmerle, 104 A.D.2d 242, 484 N.Y.S.2d 213;  Wright v. Sunset Recreation, 91 A.D.2d 701, 457 N.Y.S.2d 606;  Gabrielle v. Craft, 75 A.D.2d 939, 428 N.Y.S.2d 84).   Thus, the Court of Appeals has held that the presence of the phrase “or otherwise” in these two statutes does not permit the conclusion that a person may, under a “Dram Shop” theory, recover for loss of consortium (see Valicenti v. Valenze, 68 N.Y.2d 826, 507 N.Y.S.2d 616, 499 N.E.2d 870).

 In contrast, the statutes explicitly provide that persons injured in respect to their “means of support” have the right to recover under a “Dram Shop” theory.   The courts have held that this right to recovery does not strictly depend on whether the plaintiff was owed a statutory or contractual duty of support by the person whose ability to furnish such support was diminished as the result of the injuries suffered on account of intoxication.   Such recovery is possible if the injured party either had such a duty, or had undertaken a pre-accident course of making support payments notwithstanding the absence of such a duty (see McNeill v. Rugby Joe's, 272 A.D.2d 384, 707 N.Y.S.2d 483;  Gigliotti v. Byrne Dairy, 249 A.D.2d 973, 672 N.Y.S.2d 172;  Marsico v. Southland Corp., 148 A.D.2d 503, 539 N.Y.S.2d 378).   In the present case, the record is silent as to whether Dunphy had ever undertaken such an obligation to provide support to the plaintiff.   Because the respondent failed to demonstrate that Dunphy provided no financial support to the plaintiff before the time of the accident, it failed to establish its prima facie right to judgment as a matter of law with respect to this branch of its motion.   However, under the circumstances of this case, the respondent should be granted leave to renew.

 With respect to the issue of medical expenses, we agree with the Supreme Court that the “Dram Shop” statutes do not authorize any recovery by a benefactor who makes wholly gratuitous payments to the health care providers who furnish medical services to a person injured as the result of intoxication.   A person making such gratuitous payments, as opposed to, for example, lending the money to the injured person, inflicts economic harm upon himself or herself, and cannot be considered as having been injured in his or her “person, property, or means of support” (General Obligations Law § 11-100;  see Ragan v. Protko, 66 Ill.App.3d 257, 22 Ill.Dec. 937, 383 N.E.2d 745[Ill];  Sapp v. Johnston, 15 Ill.App.3d 119, 303 N.E.2d 429 [Ill];  Counts v. Hospitality Employees, 518 N.W.2d 358 [Iowa] ).

 There is no common-law right of recovery in favor of a parent who pays the medical expenses of an adult child, even when the child lives in the parent's home (see e.g. Estate of Sit v. Dighello Bros. Auto Sales, 2000 WL 288466 [Super Ct Conn, Mar. 13, 2000];  Kotlar v. House, 57 Ohio App.3d 26, 566 N.E.2d 701 [Ohio];  Norman v. Massachusetts Bay Transp. Auth., 403 Mass. 303, 529 N.E.2d 139 [Mass];  Higgins v. J.C. Penney Cas. Ins. Co., 388 N.W.2d 429 [Minn];  Freeburger v. Bichell, 135 Md.App. 680, 763 A.2d 1226 [Md];  In re Mangan's Will, 83 N.Y.S.2d 393;  Restatement [Second] of Torts § 703[b], Comment F).  In New York, a parent's right to recover for medical expenses incurred by a child is grounded upon the parent's obligation to support a minor child (see Clough v. Board of Educ. of Spencerport Cent. School Dist., 56 A.D.2d 233, 392 N.Y.S.2d 170;  Cuming v. Brooklyn City R.R. Co., 109 N.Y. 95, 97, 16 N.E. 65).   There is no basis upon which to conclude that the legislature intended the parents of adult children to have recovery for medical expenses under the “Dram Shop Act” even though they would not have had such recovery under the common law.   The case of Ray v. Galloway's Cafe (supra) is not to the contrary.   The injured person in that case was 20 years old, and thus, his parents, the plaintiffs, had a legal obligation to pay for his medical care (see also Reuter v. Flobo Enters. Ltd., 120 A.D.2d 722, 503 N.Y.S.2d 67;  Raynor v. C.G.C. Grocery Corp., 159 A.D.2d 463, 552 N.Y.S.2d 316;  Schrader v. Carney, 198 A.D.2d 779, 604 N.Y.S.2d 376;  Dodge v. Victory Mkts., 199 A.D.2d 917, 606 N.Y.S.2d 345;  Etu v. Cumberland Farms, 148 A.D.2d 821, 538 N.Y.S.2d 657;  Powers v. Niagara Mohawk Power Corp., 129 A.D.2d 37, 516 N.Y.S.2d 811).

The plaintiff correctly concedes on appeal that so much of the complaint as seeks damages for loss of filial consortium is without merit and should be dismissed (see Valicenti v. Valenze, supra;  see also DeAngelis v. Lutheran Med. Center, 58 N.Y.2d 1053, 462 N.Y.S.2d 626, 449 N.E.2d 406;  Gilbert v. Stanton Brewery, 295 N.Y. 270, 67 N.E.2d 155;  Devito v. Opatich, 215 A.D.2d 714, 627 N.Y.S.2d 441;  McCauley v. Carmel Lanes, 178 A.D.2d 835, 577 N.Y.S.2d 546).

 The Supreme Court was authorized to grant summary judgment to the non-moving defendant on those claims for which summary judgment is warranted in favor of the moving defendant-respondent, Lily Flanagan's II d/b/a Lily Flanagan's, Inc. (see CPLR 3212[b] ).  We are similarly authorized to grant summary judgment on those claims to the non-moving defendant (see Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 106, 472 N.Y.S.2d 592, 460 N.E.2d 1077).   Therefore, the order is modified, on the law, by (1) deleting the provision thereof granting that branch of the motion which was to limit the plaintiff's recovery for loss of financial support to the period preceding the 21st birthday of her son and substituting therefor a provision denying that branch of the motion with leave to renew, and (2) adding thereto a provision searching the record pursuant to CPLR 3212(b) and, upon searching the record, (a) granting partial summary judgment to the defendant J & I Sports Enterprises, Inc., to the extent of limiting the plaintiff's recovery for past and future medical expenses of her son to those expenses incurred during the period preceding his 21st birthday, and (b) granting partial summary judgment to both the respondent and the defendant J & I Sports Enterprises, Inc., dismissing so much of the complaint as is based on a claim of loss of consortium;  as so modified, the order is affirmed, with costs to the respondent.

ORDERED that the order is modified, on the law, by (1) deleting the provision thereof granting that branch of the motion which was to limit the plaintiff's recovery for loss of financial support to the period preceding the 21st birthday of her son, and substituting therefor a provision denying that branch of the motion with leave to renew, and (2) adding thereto a provision searching the record pursuant to CPLR 3212(b) and, upon searching the record, (a) granting partial summary judgment to the defendant J & I Sports Enterprises, Inc., to the extent of limiting the plaintiff's recovery for past and future medical expenses of her son to those expenses incurred during the period preceding his 21st birthday, and (b) granting partial summary judgment to both the respondent and the defendant J & I Sports Enterprises, Inc., dismissing so much of the complaint as is based on a claim of loss of consortium;  as so modified, the order is affirmed, with costs to the respondent.

PRUDENTI, P.J.

RITTER, McGINITY and H. MILLER, JJ., concur.

Copied to clipboard