Zona v. Oatka Restaurant & Lounge, Inc.

Callahan, J. P., and O’Donnell, J.

(dissenting). We find nothing in this record which requires us to deviate from the well-established principles of contribution promulgated since Dole v Dow Chem. Co. (30 NY2d 143) and now codified in CPLR article 14. In the factual context of this case, Thomas and Margaret Zona, husband and wife, were patrons at the Oatka Hotel. Thomas consumed liquor therein which caused him to become intoxicated and, allegedly, additional alcoholic beverages were provided him while so intoxicated. On the way home, Thomas lost control of the car, it left the road, struck a tree and caused fatal head injuries to Margaret. Thomas survived the accident but subsequently died of unrelated causes. Their son, Robert, as administrator of Margaret Zona’s estate and as legal guardian of his infant sister, Amy Zona, commenced this action against the defendant Oatka Restaurant & Lounge, Inc. The amended complaint alleges two causes of action based on the Dram Shop Act (General Obligations Law § 11-101). The first is for "conscious pain and suffering” endured by Margaret prior to her death. The second cause of action alleges injury to Amy Zona’s "means of support” caused by the intoxication of Thomas P. Zona. After issue was joined, Oatka instituted a third-party action over against Thomas (the intoxicated tort-feasor) for contribution. The third-party defendant moved to dismiss the claim over as contrary to public policy under this court’s decision in Bartlett v Grande (103 AD2d 671). We would affirm Special Term’s denial of this motion.

At the outset, it should be noted that Thomas, the intoxicated vendee, survived the accident; one reading the majority view may conclude otherwise. Keep in mind that plaintiffs have not instituted any wrongful death action herein. The sole remedy in negligence for the loss of a deceased spouse’s support and services is an action for wrongful death (Osborn v Kelley, 61 AD2d 367, 370), pursuant to EPTL 5-4.1. The majority gratuitously conclude that "Amy has stated a cause of action under the Dram Shop Act”. That issue was not before Special Term and may very well be the topic for consideration at another time.

*997In a Dram Shop action, the vendor of alcohol and the intoxicated tort-feasor are subject to liability for damages for the same injury and may claim contribution among themselves as to compensatory damages awarded to the injured party (CPLR 1401; Smith v Guli, 106 AD2d 120, 122). In the Bartlett case we were confronted with a factual situation where the legislative policy of the Dram Shop Act would have been clearly thwarted and the potential recovery of the deceased vendee’s dependents substantially diminished were we to have applied the principles of contribution (Bartlett v Grande, supra, p 673). Application of the public policy considerations expressed in Bartlett is not present in this record. In our view, contribution would not frustrate the legislative intent behind the statute imposing strict or absolute liability for disfavored conduct. As a matter of fact, as we view this record, the infant and her mother’s estate may very well sustain a greater loss under the majority view and in the posture of these pleadings.

Furthermore, on this record, we would limit the right of contribution "in light of the universality of insurance and current doctrine favoring apportionment of damages among joint tort-feasors.” (Kelly v Diesel Constr. Div., 35 NY2d 1, 4.) Therefore, in view of the strong policy supporting apportionment of compensatory damages in accordance with relative culpability, Special Term’s decision to deny third-party defendant’s motion to dismiss the cross claim should be affirmed. (Appeal from order of Supreme Court, Monroe County, Tillman, J. — dismiss third-party complaint.) Present — Callahan, J. P., Doerr, Green, O’Donnell and Pine, JJ.