Opinion
87 CA 22-00485
06-30-2023
Jason J. MCGIRR, Plaintiff-Appellant, v. Justin ZURBRICK, Defendant, and Canalside Harbor 2013, LLC, Defendant-Respondent. (Appeal No. 2.)
LAW OFFICES OF STEVE BOYD, P.C., BUFFALO (LEAH A. COSTANZO OF COUNSEL), FOR PLAINTIFF-APPELLANT. RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (NOLAN M. HALE OF COUNSEL), FOR DEFENDANT-RESPONDENT.
LAW OFFICES OF STEVE BOYD, P.C., BUFFALO (LEAH A. COSTANZO OF COUNSEL), FOR PLAINTIFF-APPELLANT.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (NOLAN M. HALE OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, BANNISTER, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when the vehicle he was in was rear-ended by a vehicle driven by defendant Justin Zurbrick, who had worked as a bartender that evening at a restaurant owned and operated by Canalside Harbor 2013, LLC (defendant). As relevant here, plaintiff asserted causes of action against defendant based on claims of violation of the Dram Shop Act and negligent supervision. Defendant moved for summary judgment dismissing the second amended complaint against it, and Supreme Court granted the motion except with respect to the claim for violation of the Dram Shop Act.
Prior to trial, plaintiff served a notice for discovery and inspection and requested, inter alia, a copy of payroll records to enable plaintiff to identify employees who were working the evening of the incident. After having requested the information on two occasions, plaintiff moved pursuant to CPLR 3126 for sanctions based on defendant's failure to comply and requested an adverse inference charge. In response to the motion, defendant produced Zurbrick's timecard. In reply, plaintiff asserted that defendant's failure to comply was willful and sought to have the court sanction defendant by striking its answer to the second amended complaint (answer) or by rendering a liability determination in plaintiff's favor. The court granted the motion to the extent of sanctioning defendant $1,000 and directed defendant to search for and produce timecards and payroll records for all employees working on the night of the incident. The court further ordered that if additional records were found that had not already been produced, defendant may be subject to additional sanctions upon a motion by plaintiff. The court denied plaintiff's motion insofar as it sought an adverse inference charge, the striking of defendant's answer, or a determination of liability. Defendant subsequently produced the timecards of additional employees who worked the evening of the incident, and plaintiff cross-moved for leave to renew and reargue his motion for sanctions. The court, inter alia, denied plaintiff's cross-motion and the case proceeded to a jury trial.
In appeal No. 1, plaintiff appeals from that order insofar as it denied his cross-motion for leave to renew and reargue. In appeal No. 2, plaintiff appeals from a judgment dismissing the second amended complaint against defendant upon a jury verdict in favor of defendant.
Initially, we agree with defendant that the appeal from the order in appeal No. 1 insofar as it denied that part of plaintiff's cross-motion seeking leave to reargue must be dismissed because no appeal lies therefrom (see MidFirst Bank v. Storto , 121 A.D.3d 1575, 1575, 993 N.Y.S.2d 854 [4th Dept. 2014] ; Empire Ins. Co. v. Food City, Inc. , 167 A.D.2d 983, 984, 562 N.Y.S.2d 5 [4th Dept. 1990] ). Contrary to defendant's contentions, however, the cross-motion also sought leave to renew and was supported by new, relevant facts, i.e., the timecards for the employees who worked at the restaurant the evening of the incident (see generally CPLR 2221 [d] [1] ; [e] [1]). Nevertheless, we further conclude that the appeal from the order insofar as it denied that part of plaintiff's cross-motion seeking leave to renew must be dismissed because the right to appeal from that intermediate order terminated upon the entry of the judgment in appeal No. 2 (see Kim v. Il Yeon Kwon , 144 A.D.3d 754, 755, 41 N.Y.S.3d 68 [2d Dept. 2016] ; Brown Bark II, L.P. v. Weiss & Mahoney, Inc. , 90 A.D.3d 963, 964, 935 N.Y.S.2d 637 [2d Dept. 2011] ; see generally Matter of Aho , 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 [1976] ). Contrary to defendant's contention, however, the issue raised by plaintiff with respect to the order in appeal No. 1 may be considered upon the appeal from the judgment in appeal No. 2 (see Aho , 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ; Simon v. Granite Bldg. 2, LLC , 170 A.D.3d 1227, 1229, 97 N.Y.S.3d 240 [2d Dept. 2019], lv denied 34 N.Y.3d 904, 2019 WL 6271519 [2019] ; see also CPLR 5501 [a] [1] ). That part of the order in appeal No. 1 denying that part of plaintiff's cross-motion for leave to renew "necessarily affect[ed]" the final judgment ( CPLR 5501 [a] [1] ) inasmuch as reversing that part of the order and granting plaintiff's motion for sanctions insofar as it sought the striking of defendant's answer or a determination of liability in plaintiff's favor "would inescapably have led to a vacatur of the judgment" ( Bonczar v. American Multi-Cinema, Inc. , 38 N.Y.3d 1023, 1025, 168 N.Y.S.3d 711, 188 N.E.3d 1000 [2022], rearg denied 38 N.Y.3d 1170, 174 N.Y.S.3d 692, 195 N.E.3d 526 [2022] [internal quotation marks omitted]; see Aho , 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ; Stanescu v. Stanescu , 206 A.D.3d 1031, 1033-1034, 168 N.Y.S.3d 885 [2d Dept. 2022] ).
With respect to plaintiff's contention that the court should have granted that part of the cross-motion seeking leave to renew and struck defendant's answer or rendered a liability determination in favor of plaintiff based on defendant's discovery violation, we reject defendant's assertion that plaintiff was not aggrieved by the court's August 2021 order on plaintiff's initial motion for sanctions and that he was thus precluded from cross-moving for leave to renew that motion. Plaintiff's motion initially sought an adverse inference charge for the missing timecards. When defendant produced Zurbrick's timecard in response to the motion—after previously representing that the timecard was missing or had been destroyed—plaintiff sought to have the court sanction defendant for the discovery violation by striking defendant's answer or rendering a liability determination in plaintiff's favor. Contrary to defendant's assertion, it was proper for plaintiff to raise that new request for sanctions in his reply papers inasmuch as the request was made in direct response to defendant's production of Zurbrick's timecard, for which an adverse inference charge would no longer be appropriate (see Studer v. Newpointe Estates Condominium , 152 A.D.3d 555, 557, 58 N.Y.S.3d 509 [2d Dept. 2017] ; see generally Mikulski v. Battaglia , 112 A.D.3d 1355, 1356, 977 N.Y.S.2d 839 [4th Dept. 2013] ). In the August 2021 order, the court sanctioned defendant $1,000 but otherwise denied the motion. We conclude that plaintiff was aggrieved by the August 2021 order because the court denied his request to strike defendant's answer or make a liability determination in plaintiff's favor (see Lobello v. New York Cent. Mut. Fire Ins. Co. , 152 A.D.3d 1206, 1207, 58 N.Y.S.3d 842 [4th Dept. 2017] ; Finocchi v. Live Nation Inc. , 141 A.D.3d 1092, 1093, 34 N.Y.S.3d 840 [4th Dept. 2016] ).
Regarding the merits of plaintiff's challenge to the denial of that part of his cross-motion for leave to renew, a motion seeking leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" and "shall contain reasonable justification for the failure to present such facts on the prior motion" ( CPLR 2221 [e] [2], [3] ; see Ashley M. v. Marcinkowski , 207 A.D.3d 1093, 1094, 172 N.Y.S.3d 255 [4th Dept. 2022] ; Home Insulation & Supply, Inc. v. Iskalo 5000 Main, LLC , 189 A.D.3d 2118, 2119, 134 N.Y.S.3d 861 [4th Dept. 2020] ). We agree with plaintiff that his cross-motion was based on new facts not offered on the prior motion, i.e., the timecards for the employees other than Zurbrick who were working on the night of the incident, which defendant did not turn over until after the court's August 2021 order. We further agree that plaintiff had a reasonable justification for his failure to present those facts on the prior motion. We conclude, however, that the court properly denied plaintiff's cross-motion insofar as it sought leave to renew because the new facts would not change the court's prior determination (see Shaw v. Friedly , 167 A.D.3d 1490, 1490, 88 N.Y.S.3d 327 [4th Dept. 2018] ; Violet Realty, Inc. v. Gerster Sales & Serv., Inc. [appeal No. 2], 128 A.D.3d 1348, 1350, 6 N.Y.S.3d 896 [4th Dept. 2015] ). In his cross-motion, plaintiff did not seek additional monetary sanctions but rather requested that the court strike defendant's answer or, in the alternative, reinstate the causes of action previously dismissed on defendant's summary judgment motion and issue a determination of liability in plaintiff's favor. " ‘Although the nature and degree of a sanction for a party's failure to comply with discovery generally is a matter reserved to the sound discretion of the trial court, the drastic remedy of striking [a pleading] is inappropriate absent a showing that the failure to comply is willful, contumacious, or in bad faith’ " ( Windnagle v. Tarnacki , 184 A.D.3d 1178, 1179, 126 N.Y.S.3d 282 [4th Dept. 2020] ; see Pezzino v. Wedgewood Health Care Ctr., LLC , 175 A.D.3d 840, 841, 106 N.Y.S.3d 535 [4th Dept. 2019] ; Mosey v. County of Erie , 148 A.D.3d 1572, 1574, 50 N.Y.S.3d 641 [4th Dept. 2017] ). Plaintiff's alternative request for relief seeks, in essence, a default judgment, which is an equally inappropriate sanction for a discovery violation absent the requisite showing of willfulness, contumaciousness, or bad faith (see O'Connor v. Root , 284 A.D.2d 979, 979, 726 N.Y.S.2d 895 [4th Dept. 2001] ; Monaco v. Camie-Campbell, Inc. , 256 A.D.2d 1214, 1215, 682 N.Y.S.2d 510 [4th Dept. 1998], lv dismissed in part & denied in part 93 N.Y.2d 887, 689 N.Y.S.2d 427, 711 N.E.2d 641 [1999] ). Here, while the court recognized that defendant had no excuse for the discovery violation, it did not abuse its discretion in determining that the striking of defendant's answer or awarding plaintiff a default judgment was not appropriate (see Lobello , 152 A.D.3d at 1207, 58 N.Y.S.3d 842 ; O'Connor , 284 A.D.2d at 979, 726 N.Y.S.2d 895 ; see also Finocchi , 141 A.D.3d at 1093, 34 N.Y.S.3d 840 ).
With respect to the judgment, which dismissed plaintiff's second amended complaint against defendant upon the jury verdict in favor of defendant, plaintiff first contends that the court erred in its response to a note from the jury regarding the jury instructions. On plaintiff's claim for violation of the Dram Shop Act, the court instructed the jury pursuant to Pattern Jury Instruction ( PJI) 2:28. It first recited the relevant provisions of General Obligations Law § 11-101 by instructing the jury that "[a]ny person who shall be injured in person, property, means of support, or otherwise by any intoxicated person or by reason of the intoxication of any person, whether resulting in his death or not, shall have a right of action against any person who shall, by unlawful selling liquor to such intoxicated person, have caused or contributed to such an intoxication. And in this such action, such person shall have the right to recover damages." Continuing pursuant to PJI 2:28, the court instructed the jury that "unlawful selling occurs when a person sells, delivers, gives away, or causes, permits or procures the sale, delivery, or gift, of any alcoholic beverage to any visibly intoxicated person." The first question on the verdict sheet asked "Did [defendant] sell alcohol to ... Zurbrick prior to the motor vehicle accident on October 26, 2017?" The jury retired to deliberate and shortly thereafter sent a note asking "[F]or question 1, can sell, also encompass give to ... Zu[r]brick?" Over plaintiff's objection, the court instructed the jury "[t]he answer is no, there has to be proof of a sale ... Give does not qualify."
Initially, we reject plaintiff's contention that the court was required to re-read PJI 2:28 to the jury in response to the note because that instruction was "law of the case." The cases relied on by plaintiff to support that assertion do not involve the propriety of the court's response to a note from the jury during deliberations. Plaintiff further contends that the court erred in its response to the note because a claim for violation of the Dram Shop Act against a business involved in the commercial sale of alcohol does not require that there be an actual sale of alcohol and may encompass the business giving alcohol away, including "drinks on the house." We reject that contention. The plain language of General Obligations Law § 11-101 prohibits the unlawful "sale" and "selling" of alcohol (see D'Amico v. Christie , 71 N.Y.2d 76, 84, 524 N.Y.S.2d 1, 518 N.E.2d 896 [1987] ). This is in contrast to General Obligations Law § 11-100 (1), which prohibits the unlawful "furnishing" of alcohol to a person under the age of twenty-one years and does not require a commercial sale (see Sherman v. Robinson , 80 N.Y.2d 483, 486-487, 591 N.Y.S.2d 974, 606 N.E.2d 1365 [1992] ; McCauley v. Carmel Lanes Inc. , 178 A.D.2d 835, 836, 577 N.Y.S.2d 546 [3d Dept. 1991] ; see generally Stewart v. Taylor , 167 A.D.2d 846, 846, 562 N.Y.S.2d 253 [4th Dept. 1990], lv denied 77 N.Y.2d 805, 568 N.Y.S.2d 913, 571 N.E.2d 83 [1991] ). The Dram Shop Act created an exception to the common-law rule that a person is not liable for selling or furnishing alcohol to an adult who becomes intoxicated and, "[a]s an exception to the common law, the statute must ... be construed narrowly" ( D'Amico , 71 N.Y.2d at 83, 524 N.Y.S.2d 1, 518 N.E.2d 896 ; see Delamater v. Kimmerle , 104 A.D.2d 242, 244, 484 N.Y.S.2d 213 [3d Dept. 1984] ). Had the legislature intended that a sale of alcohol is not required under section 11-101 for a business involved in the commercial sale of alcohol, it could have so stated (see generally D'Amico , 71 N.Y.2d at 84, 524 N.Y.S.2d 1, 518 N.E.2d 896 ).
Plaintiff's reliance on Alcoholic Beverage Control Law § 65 in support of his assertion that the unlawful sale of alcohol includes giving it away is misplaced. That statute provides that "[n]o person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to 1. Any person, actually or apparently, under the age of twenty-one years; [or] 2. Any visibly intoxicated person." Although General Obligations Law § 11-101 and Alcoholic Beverage Control Law § 65 must be read together (see Mitchell v. The Shoals, Inc. , 26 A.D.2d 78, 79, 271 N.Y.S.2d 137 [1st Dept. 1966], affd 19 N.Y.2d 338, 280 N.Y.S.2d 113, 227 N.E.2d 21 [1967] ; Matalavage v. Sadler , 77 A.D.2d 39, 42-43, 432 N.Y.S.2d 103 [2d Dept. 1980] ), it is not in the way that plaintiff seeks. Alcoholic Beverage Control Law § 65 does not create an independent statutory cause of action (see Sherman , 80 N.Y.2d at 487, 591 N.Y.S.2d 974, 606 N.E.2d 1365 ; Moyer v. Lo Jim Cafe , 19 A.D.2d 523, 523, 240 N.Y.S.2d 277 [1st Dept. 1963], affd 14 N.Y.2d 792, 251 N.Y.S.2d 30, 200 N.E.2d 212 [1964] ; Parslow v. Leake , 117 A.D.3d 55, 69, 984 N.Y.S.2d 493 [4th Dept. 2014] ). "Liability under [General Obligations Law] sections 11-100 and 11-101 attaches only in the event of an ‘unlawful’ sale or delivery of alcohol. That term is defined in Alcoholic Beverage Control Law § 65" ( Sherman , 80 N.Y.2d at 487, 591 N.Y.S.2d 974, 606 N.E.2d 1365 [emphasis added]). In other words, Alcoholic Beverage Control Law § 65 defines what makes a sale of alcohol to another "unlawful" under General Obligations Law § 11-101, which is the selling of alcohol to a visibly intoxicated person (see generally Jones v. Kelly , 201 A.D.2d 536, 536, 608 N.Y.S.2d 667 [2d Dept. 1994] ). Alcoholic Beverage Control Law § 65 does not define what an unlawful "sale" is under General Obligations Law § 11-101.
We therefore conclude that, for liability to be imposed under General Obligations Law § 11-101, plaintiff was required to establish that there was an unlawful sale of alcohol and that it was not merely given away (see Stevens v. Spec, Inc. , 224 A.D.2d 811, 813, 637 N.Y.S.2d 979 [3d Dept. 1996] ; Carr v. Kaifler , 195 A.D.2d 584, 585, 601 N.Y.S.2d 8 [2d Dept. 1993] ; Custen v. Salty Dog, Inc. , 170 A.D.2d 572, 572, 566 N.Y.S.2d 348 [2d Dept. 1991] ). The court thus properly instructed the jury in response to its note.
Plaintiff next contends that the court erred in denying his request for an adverse inference charge for an alleged missing bar receipt. A party seeking an adverse inference charge based on an opposing party's failure to produce a document "must make a prima facie showing that the document in question actually exists, that it is under the opponent's control, and that there is no reasonable explanation for failing to produce it" ( Hutchinson v. New York City Health & Hosps. Corp. , 172 A.D.3d 1035, 1036-1037, 101 N.Y.S.3d 441 [2d Dept. 2019] ; see Jae Duk Ahn v. Kyong Koo Kang , 192 A.D.3d 994, 995, 140 N.Y.S.3d 773 [2d Dept. 2021] ; State of New York v. 158th St. & Riverside Dr. Hous. Co., Inc. , 100 A.D.3d 1293, 1295-1296, 956 N.Y.S.2d 196 [3d Dept. 2012], lv denied 20 N.Y.3d 858, 2013 WL 452396 [2013] ). The court properly denied plaintiff's request inasmuch as he failed to make a prima facie showing that the receipt in question actually existed (see Jae Duk Ahn , 192 A.D.3d at 995, 140 N.Y.S.3d 773 ). Contrary to plaintiff's further contention, we conclude that the court properly precluded him from introducing Zurbrick's statement to the police that he had consumed alcohol at the restaurant as direct evidence against defendant, a coparty to the litigation (see Morrissey v. City of New York, 221 A.D.2d 607, 607, 634 N.Y.S.2d 185 [2d Dept. 1995] ; Ellis v. Allstate Ins. Co. , 97 A.D.2d 970, 970, 468 N.Y.S.2d 776 [4th Dept. 1983] ; see also Rivera v. New York City Tr. Auth. , 54 A.D.3d 545, 547, 863 N.Y.S.2d 201 [1st Dept. 2008] ; see generally Jerome Prince, Richardson on Evidence § 8-226 [Farrell 11th ed 1995]).
Finally, we reject plaintiff's contention that the court erred in granting defendant's motion insofar as it sought summary judgment dismissing the claim for negligent supervision against it. As we noted above, "[a]t common law, one who provided intoxicating liquor was not liable for injuries caused by the drinker, who was held solely responsible" ( D'Amico , 71 N.Y.2d at 83, 524 N.Y.S.2d 1, 518 N.E.2d 896 ; see Allen v. County of Westchester , 109 A.D.2d 475, 476, 492 N.Y.S.2d 772 [2d Dept. 1985], appeal dismissed 66 N.Y.2d 915, 498 N.Y.S.2d 1027, 489 N.E.2d 773 [1985] ). "Excessive alcohol consumption was deemed to be the proximate cause of injuries produced by the inebriate; selling or furnishing alcohol to an adult who elected to become intoxicated was not viewed as the root of the resulting harm" ( D'Amico , 71 N.Y.2d at 83, 524 N.Y.S.2d 1, 518 N.E.2d 896 ; see Portaro v. Gerber , 217 A.D.2d 539, 541, 629 N.Y.S.2d 277 [2d Dept. 1995] ; Allen , 109 A.D.2d at 476-477, 492 N.Y.S.2d 772 ). "By the Dram Shop Act, the Legislature created an exception to the common-law rule" ( D'Amico , 71 N.Y.2d at 83, 524 N.Y.S.2d 1, 518 N.E.2d 896 ). Another exception exists "where the intoxicated individual, while inside a bar, injures a third party and the individual who served the alcohol had the opportunity to exercise control over the wrongdoer's conduct and was reasonably aware of the necessity of such control" ( Portaro , 217 A.D.2d at 541, 629 N.Y.S.2d 277 ; see Struebel v. Fladd , 75 A.D.3d 1164, 1165, 905 N.Y.S.2d 732 [4th Dept. 2010] ; Allen , 109 A.D.2d at 477, 492 N.Y.S.2d 772 ; Wright v. Sunset Recreation, Inc. , 91 A.D.2d 701, 701, 457 N.Y.S.2d 606 [3d Dept. 1982] ).
Here, we conclude that defendant met its initial burden on the motion with respect to the negligent supervision claim by establishing that the incident that caused plaintiff's injuries did not occur inside the bar (see Place v. Cooper , 35 A.D.3d 1260, 1261, 827 N.Y.S.2d 396 [4th Dept. 2006] ; Lombart v. Chambery , 19 A.D.3d 1110, 1110-1111, 797 N.Y.S.2d 216 [4th Dept. 2005] ; Wright , 91 A.D.2d at 701, 457 N.Y.S.2d 606 ). Plaintiff failed to raise a triable issue of fact in opposition (see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).