| Kaufman v Quickway, Inc. |
| 2010 NY Slip Op 04831 [14 NY3d 907] |
| June 8, 2010 |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, August 4, 2010 |
| Joseph E. Kaufman, Individually and as Administrator of the Estate of Joseph D. Kaufman, Deceased, et al., Appellants, v Quickway, Inc., et al., Respondents. |
Decided June 8, 2010
Kaufman v Quickway, Inc., 64 AD3d 978, affirmed.
APPEARANCES OF COUNSEL
Alexander J. Wulwick, New York City, and Duane C. Felton, Staten Island, for appellants.
Law Firm of Frank W. Miller, East Syracuse (Frank W. Miller of counsel), for respondents.
Memorandum.
The order of the Appellate Division should be affirmed, with costs. [*2]
In this Dram Shop Act action involving a convenience store's allegedly illegal sale of alcohol to a visibly intoxicated customer who later caused a fatal traffic accident, the Appellate Division reversed Supreme Court's order denying defendants' motion for summary judgment, granted the motion, and dismissed the complaint. The Appellate Division held that the store clerk's out-of-court statements to a State Trooper investigating the accident were not admissible under the hearsay exception for prior inconsistent statements to rebut her later deposition testimony (see Letendre v Hartford Acc. & Indem. Co., 21 NY2d 518, 524 [1968]; cf. Nucci v Proper, 95 NY2d 597, 603 [2001]). We disagree. The supporting deposition prepared by the Trooper and signed by the witness under penalty of perjury contained numerous indicia of reliability justifying its admissibility under Letendre. And, as in Letendre, the store clerk was available for cross-examination. In addition, the statement was sufficient to{**14 NY3d at 909} create a triable issue regarding whether the driver was visibly intoxicated at the time of the alcohol sale (see Alcoholic Beverage Control Law § 65 [2]; General Obligations Law § 11-101).
Nevertheless, summary judgment was properly granted to defendants. Plaintiffs failed to create a triable issue to rebut defendants' prima facie evidence demonstrating that no reasonable or practical connection existed between the allegedly illegal sale of alcohol and the accident (see Oursler v Brennan, 67 AD3d 36, 43 [4th Dept 2009], lv granted 68 AD3d 1824 [4th Dept 2009]; Schmidt v Policella, 43 AD3d 1141, 1143 [2d Dept 2007], lv denied 9 NY3d 817 [2008]).
Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.