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OURSLER v. BRENNAN

CA 08-01231.

67 A.D.3d 36 (2009)

884 N.Y.S.2d 534

2009 NY Slip Op 06357

CHRISTOPHER OURSLER, Individually and as Administrator of the Estate of JULIE OURSLER, Deceased, Appellant, v. ROBERT E. BRENNAN, Appellant, and MALBEAT, INC., Doing Business as MALLWITZ'S ISLAND LANES, Respondent.

Appellate Division of the Supreme Court of New York, Fourth Department.

Decided August 28, 2009.

Attorney(s) appearing for the Case

Paul William Beltz, P.C., Buffalo (Debra A. Norton of counsel), for Christopher Oursler, appellant.

Damon & Morey LLP, Buffalo (Joseph W. Dunbar of counsel), for Robert E. Brennan, appellant.

Law Offices of Douglas Coppola, Buffalo (Patricia Stroman Walker of counsel), for respondent.

HURLBUTT, J.P., CENTRA and GORSKI, JJ., concur with PERADOTTO, J.; CARNI, J., dissents and votes to affirm in a separate opinion.

OPINION OF THE COURT

PERADOTTO, J.

The primary issue to be determined on this appeal is what actions constitute "guilty participation" on the part of a plaintiff so as to preclude recovery under General Obligations Law § 11-101 (Dram Shop Act). More specifically, we must determine whether plaintiff is unable to state a cause of action under that statute as a matter of law because he purchased two alcoholic beverages for his wife (decedent). We conclude...

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