A 100th Birthday and Lessons Learned
Today marks what would have been the 100th birthday of our founder, Louis H. Levine. Its hard to imagine that on this day 100 years ago he was just starting out, and how different the world was in 1909 and all the things that have happened since then. One of the important lessons Mr. Levine taught was tenacity dont think that a case is lost solely based upon first blush, such as an unfavorable police report. Sometimes, for instance, a defendant at a deposition says something that provides an opening to argue that what is on a police report is wrong. A recent decision, Kaufman v. Quickway, Inc.,--- N.Y.S.2d ----, 2009 N.Y. Slip Op. 05727, 2009 WL 1955864 (3rd Dept. 2009) is an example of that lesson, albeit that the lesson helped the defendant in that case. Kaufman involves a motor vehicle accident that occurred less than seven minutes after a man purchased a 12-pack of beer at a convenience store operated by defendants. The man drove his vehicle at high speed, swerved into oncoming traffic and struck a vehicle being driven by plaintiffs' son, killing both himself and the son. Statements by the convenience store clerk included her description of the customer to whom she sold a 12-pack of beer on the afternoon of the collision as well as her account that the customer had the odor of beer on his breath and she had difficulty understanding what he was saying. The store clerks statements were contained in a supporting deposition prepared by a police officer and purportedly signed by the store clerk under penalty of perjury, but not sworn or notarized. The police officer had also testified as to the oral statements allegedly made by the store clerk to him when he prepared the supporting deposition. Plaintiffs commenced an action alleging that defendants violated General Obligations Law 11-101(1) ("Dram Shop Act") by selling alcohol to Beers when he was visibly intoxicated. The Supreme Court denied the defendants motion for summary judgment, finding that the convenience store clerks statements about the sale raised questions of fact. Defendants appealed and the Third Department reversed. The reversal was based upon the finding that the store clerks statements constituted out-of-court statements that were inadmissible hearsay and unreliable inasmuch as the clerk had seriously disputed that the statements utterance and content, expressly asserting that her words were incorrectly reported. Specifically, during her subsequent examination before trial, the store clerk strongly denied making the statements upon which plaintiffs now rely to establish the drivers appearance of intoxication. She averred instead that she had not smelled alcohol on the customer to whom she sold the beer, she had no trouble understanding him and denied knowing whether the customer was intoxicated. The store clerk asserted that the supporting deposition is not the actual document that she signed and does not accurately reflect the statement that she gave. The court noted that there was no other admissible evidence tending to support the contention that Beers appeared intoxicated in the convenience store at the time of the sale. No one else observed Beers at the store and plaintiffs presented no expert evidence that his blood alcohol content would have caused him to appear intoxicated at the time of the sale. Kaufman v. Quickway, Inc. is an example of a defendant ending up in a much better position than seemed likely based upon an official police document. But there are plenty of instances where a plaintiffs attorney has ultimately prevailed notwithstanding a seemingly devastating police report. The attorney an accident victim chooses really does make a difference. Happy 100th!