Legal Alerts

New York Trial & Appellate Team Secures Reversal of Jury Verdict in Dram Shop Case - Plaintiff Must Prove Alcohol Was Served to a "Visibly Intoxicated Person"

New York, N.Y. (September 3, 2020) - New York Appellate Partner Nicholas P. Hurzeler and New York Trial Partner James Whalen recently obtained a reversal on appeal of a jury verdict in a Dram Shop case. The decision, rendered by New York’s Appellate Division, Second Department, reversed the jury’s $6.2 million verdict handed down in New York’s Supreme Court, Rockland County. The Appellate Division agreed that there was no evidence supporting the jury’s finding that the insured restaurant violated the Dram Shop Act by selling alcohol to a “visibly intoxicated” patron.

Facts of the Case & Jury Verdict

The plaintiff was driving on a dry and clear road in Stony Point, New York when she spotted an oncoming automobile driving erratically. She pulled over to the shoulder and came to a complete stop when the drunk driver operating the oncoming automobile suddenly plowed into her vehicle. The plaintiff sustained a host of fractures to the upper and lower extremities, as well as internal injuries, and spent six months in the hospital, although she ultimately made a fair recovery.

The plaintiff sued the drunk driver and the insured restaurant that the driver had patronized earlier, claiming it had sold the driver drinks that day while he was visibly intoxicated. The drunk driver – who had three prior DWIs and had intentionally disabled the court-ordered interlock system on his car shortly prior to the incident – eventually pled guilty to aggravated vehicular assault. At his plea allocution, the drunk driver told the criminal court he had 17 drinks at the insured restaurant about five hours before the accident. During discovery in the civil case, it emerged that the driver had also taken numerous Percocet pills that day.

At trial in the civil case, the lower court denied our motion to preclude the plea allocution transcript in its entirety. Although the drunk driver did not testify at trial, plaintiff’s counsel relied on his plea allocution transcript in support of his arguments to the jury. The plaintiff also tried to rely on the testimony of a non-party witness who said the driver was drunk when he showed up at a party after leaving the restaurant. (The non-party witness, a 15-year-old, had leapt out of the driver’s passenger door just seconds before the crash). The jury found the drunk driver 70% at fault for the accident and the insured restaurant 30% at fault, and awarded $6.2 million in pain and suffering damages (the insured was only responsible for its 30% share, pursuant to CPLR Article 16). Plaintiff's counsel took the position that Article 16 (joint and severally liability) was not applicable.

The Appeal

On appeal, we primarily argued that the plea allocution transcript should have been precluded in its entirety because the drunk driver was never cross examined, and did not appear for a deposition or trial testimony. We argued that without the plea allocution transcript, there was no evidence that the insured sold alcohol to the drunk driver while he was visibly intoxicated. Further, the non-party witness did not have personal knowledge of the facts because, as another witness explained, the drunk driver did not appear at the party until after he drank and did drugs in his apartment after leaving the insured restaurant. Thus, there was no evidence that the insured violated the Dram Shop Act.

The Appellate Division agreed and, in a unanimous ruling, held that the lower court should have granted our motion for a directed verdict at the close of the evidence. The Appellate Division had the option to order a new trial, but instead dismissed the complaint against the insured, thus leaving the $6.2 million judgment against the drunk driver intact. A copy of the Appellate Division’s decision can be seen here.


The key to this victory was making all the correct arguments and objections in the lower court in order to preserve them for appellate review. We recognized the evidence simply did not support the verdict and persisted in maintaining this position throughout the trial and appeal process. This ruling shows that, although difficult, it is possible to obtain a dismissal even after the jury has rendered an adverse finding.

If you have any questions about this or any other matters, contact the attorneys involved directly. Visit our National Trial and Appellate Practice pages to learn more about our Trial & Appellate Team.


Nicholas P. Hurzeler, Partner

James T. Whalen, Jr., Partner


Gregory S. Katz, Managing Partner - New York, NY

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