Zona v. Oatka Restaurant & Lounge, Inc.

— Order reversed, on the law, without costs, and motion granted. Memorandum: The sole issue presented is whether the policy considerations which prohibited a claim for contribution in Bartlett v Grande (103 AD2d 671) bar the similar claim made here. In Bartlett, the children of the deceased vendee sued a vendor under the Dram Shop Act (General Obligations Law § 11-101). Plaintiffs named the estate of their deceased mother as a codefendant on the theory that she had contributed to her own death by operating her motor vehicle in a negligent manner. The vendor cross-claimed against the mother’s estate for contribution. This court granted the estate’s motion to dismiss the cross claim, holding that "[t]o permit the vendors to seek [995] contribution from the estate of the vendee, when it is the vendee’s dependents who are seeking recovery, would diminish the plaintiff['s] potential recovery and allow the vendor to reduce liability substantially.” (Bartlett v Grande, supra, p 672.) The Third Department has also adopted this rationale (see, Weinheimer v Hoffman, 97 AD2d 314, 318) and our court has recently reaffirmed it (see, Fox v Mercer, 109 AD2d 59). The vendee in this case was Thomas Zona, the husband of the deceased and the father of Amy Zona, the infant in whose behalf the instant action was commenced. The second cause of action in the complaint alleges that Amy was injured in "means of support” within the meaning of the Dram Shop Act. Since Amy’s alleged injury flowed from Thomas’ intoxication, Amy has stated a cause of action under the Dram Shop Act (see, Mitchell v The Shoals, Inc., 19 NY2d 338, 340-341). The fact that the decedent was the vendee in Bartlett (supra), while here the vendee was the husband of the decedent, does not compel a different result. The decedent’s death in each case was the product of the vendee’s intoxication. Bartlett requires dismissal of contribution claims where such claims will reduce the potential recovery of family members. Since both Margaret and Amy Zona were Thomas’ distributees, requiring Thomas’ estate to pay contribution may reduce the net benefits received by Amy, the sole surviving dependent in the family. Bartlett mandates that as long as there is a possibility that contribution will frustrate the recovery of a vendee’s dependent, the vendor’s third-party claim must be dismissed. In Bartlett this court could have made dismissal of the contribution claim contingent upon proof that the third-party claim would actually reduce the dependents’ recovery, but chose not to do so and required dismissal if there was a "potential” for the dependents of the vendee to recover. In view of the potential reduction of Amy’s recovery if the vendor’s contribution claim is allowed, Bartlett required Special Term to dismiss the third-party claim. The fact that plaintiff may sue Thomas’ estate for negligence is beside the point. Upon recovering from Thomas’ estate for Thomas’ negligence, plaintiff’s benefits as distributee may be reduced. It was this potential reduction of plaintiff’s inheritance which Bartlett sought to avoid. Here both causes of action are expressly authorized by the Dram Shop Act and accrue to the benefit of Thomas’ distributees. Allowing the third-party plaintiff vendor to receive contribution under either cause of action would decrease the potential [996] benefits available to Amy, Thomas’ sole surviving dependent, by reducing the benefits passing under Thomas’ estate. Accordingly, the order must be reversed and the third-party contribution claim must be dismissed. All concur, except Callahan, J. P., and O’Donnell, J., who dissent and vote to affirm, in the following memorandum.