        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1489
CA 12-01209
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


SAMIA GUTIERREZ, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

PIERCE A. DEVINE, KYLE TATUM, DEFENDANTS,
AND LUTZ BROTHERS, INC., DEFENDANT-RESPONDENT,


CAMPBELL & SHELTON LLP, EDEN (R. COLIN CAMPBELL OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

LIPPMAN O’CONNOR, BUFFALO (ROBERT H. FLYNN OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Kevin M.
Dillon, J.), entered September 26, 2011. The order, inter alia,
granted the motion of defendant Lutz Brothers, Inc. for summary
judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this negligence and Dram Shop
action seeking to recover damages for injuries she sustained when the
vehicle in which she was a passenger struck a tree. The vehicle was
operated by defendant Pierce A. Devine. Devine, a minor, tested
positive for alcohol after the accident, and was charged with
operating a motor vehicle while under the influence of alcohol
(Vehicle and Traffic Law § 1192 [3]) and vehicular assault in the
second degree (Penal Law § 120.03 [1]). Before the accident,
defendant Kyle Tatum, Tatum’s girlfriend, and plaintiff drove to a gas
station/convenience store owned and operated by Lutz Brothers, Inc.
(defendant), and Devine met them there. Tatum, who was 17 years old
at the time, purchased beer from the store using false identification.
The four minors then drove to a beach on Lake Erie, where they drank
beer for approximately two hours. When it started to rain, they
dropped Tatum’s car off at Devine’s house, and drove in Devine’s car
to the home of Tatum’s girlfriend to pick up a movie. The accident
occurred when the group was driving back to Devine’s house. Plaintiff
appeals from an order that, inter alia, granted defendant’s motion for
summary judgment dismissing the second amended complaint against it.
We affirm.

     We note at the outset that, although the second amended complaint
asserts a violation of General Obligations Law § 11-101, there is no
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                                                         CA 12-01209

claim or evidence that defendant sold alcohol to anyone who was
visibly intoxicated at the time of the sale in violation of that
statute (see Williams v TeDave Enters., 242 AD2d 861, 861). The
analysis is therefore limited to whether plaintiff has a viable claim
under General Obligations Law § 11-100. That statute provides in
relevant part that “[a]ny person who shall be injured in person . . .
by reason of the intoxication or impairment of ability of any person
under the age of [21] years . . . shall have a right of action to
recover actual damages against any person who knowingly causes such
intoxication or impairment of ability by unlawfully furnishing to or
unlawfully assisting in procuring alcoholic beverages for such person
with knowledge or reasonable cause to believe that such person was
under the age of [21] years” (id. [emphasis added]). Thus, the
General Obligations Law “explicit[ly] . . . limit[s] liability for
injuries caused by an intoxicated minor to the unlawful supply of
alcoholic beverages to that person” (Sherman v Robinson, 80 NY2d 483,
487). “The plain language of the [Dram Shop Act] specifies that the
individual who by reason of intoxication causes injury must be the
very person to whom defendant furnished the alcoholic beverages, or
for whom they were procured” (id.; see Jacobs v Amodeo, 208 AD2d 1171,
1172; Dodge v Victory Mkts., 199 AD2d 917, 919). Further, “liability
under General Obligations Law § 11-100 may be imposed only on a person
who knowingly causes intoxication by furnishing alcohol to (or
assisting in the procurement of alcohol for) persons known or
reasonably believed to be underage” (Sherman, 80 NY2d at 487-488).

     Here, it is undisputed that defendant sold the alcohol at issue
to Tatum and that Devine was the intoxicated person who caused
plaintiff’s injuries. There is no evidence that defendant knowingly
sold or furnished alcoholic beverages to Devine, the underage
tortfeasor, nor is there evidence that defendant assisted in procuring
alcoholic beverages for Devine. Rather, the unlawful transaction was
with Tatum (see Bregartner v Southland Corp., 257 AD2d 554, 555;
Dalrymple v Southland Corp., 202 AD2d 548, 549).

     Contrary to plaintiff’s contention, “[n]othing in the General
Obligations Law imposed upon defendant [convenience store owner] a
duty . . . to investigate possible ultimate consumers in the parking
lot beyond its doors” (Sherman, 80 NY2d at 488). Plaintiff’s reliance
on our decision in Krampen v Foster (242 AD2d 913) is misplaced. In
Krampen, although the alcohol was not sold directly to the driver, the
plaintiffs presented evidence that the store clerk knew both the
purchaser and the driver (id. at 914). While the purchase took place,
the store clerk looked out the window at the driver’s car, which was
parked directly in front of the store window, and the driver waved to
the store clerk (id.). There is no such evidence in this case. Here,
the record establishes that none of defendant’s employees knew Tatum,
Devine, or any of their companions, and the minors likewise did not
know any of defendant’s employees. Further, unlike in Krampen,
plaintiff submitted no evidence that any of defendant’s employees saw
the people or activities in the parking lot. Thus, because
plaintiff’s injuries were not caused by the minor who purchased the
alcohol, there can be no liability under the Dram Shop Act (see
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                                                         CA 12-01209

Sherman, 80 NY2d at 487; Krampen, 242 AD2d at 914), and the court
therefore properly granted that part of defendant’s motion for summary
judgment dismissing the Dram Shop cause of action against it.

     Finally, it is well settled that there is no common-law cause of
action for the negligent provision of alcohol (see Murphy v Cominsky,
100 AD3d 1493, 1495; O’Neill v Ithaca Coll., 56 AD3d 869, 872; McGlynn
v St. Andrew Apostle Church, 304 AD2d 372, 373, lv denied 100 NY2d
508; see generally D’Amico v Christie, 71 NY2d 76, 84-85), and the
court therefore also properly granted that part of defendant’s motion
for summary judgment dismissing the common-law negligence cause of
action against defendant.




Entered:   February 1, 2013                     Frances E. Cafarell
                                                Clerk of the Court
