Soto v. Frank's Beer & Soda, Inc.

In an action pursuant to General Obligations Law § 11-101 to recover damages for personal injuries arising out of a motor vehicle accident, the plaintiff appeals from an order of the Supreme Court, Nassau County (Velsor, J.), dated March 21, 1986, which granted the motion of the defendant Frank’s Beer & Soda, Inc., for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. We find unpersuasive the plaintiff’s contention that the court of first instance should have disregarded his claim pursuant to General Obligations Law § 11-101 (the Dram Shop Act) and denied the motion for summary judgment due to the existence of factual issues which were raised concerning his alleged cause of action in negligence. We agree that the Supreme Court, Nassau County, properly resolved the Dram Shop Act claim against the plaintiff. Further, the record demonstrates that no cause of action sounding in negligence was asserted in the complaint, and the plaintiff twice averred in his bill of particulars that recovery was not being sought 605 pursuant to a negligence theory. Since the plaintiff failed to raise the negligence argument at any point in the prior proceedings, he must be deemed to have waived consideration of the issue at the appellate level (see, Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342; Pastore v Zlatniski, 122 AD2d 840; Orellano v Samples Tire Equip. & Supply Corp., 110 AD2d 757). Thompson, J. P., Niehoff, Lawrence and Kunzeman, JJ., concur.