8/12/2019 Butler v. N.Y. City Transit Auth., 3 a.D.3d 301

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LEXSEE 3 AD3D 301

Michael Butler, Respondent, v New York City Transit Authority, Defendant, and Sports

Bar, Formerly Known as Stan's Sports Bar, Inc., et al., Appellants.

2107

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

3 A.D.3d 301; 770 N.Y.S.2d 317; 2004 N.Y. App. Div. LEXIS 25

January 6, 2004, Decided

January 6, 2004, Entered

HEADNOTES: [***1] Intoxicating Liquors----Right

of Action by Person Injured as Result of Voluntary

Intoxication.----Plaintiff's allegations that he became in-

toxicated as patron of defendant bar and that after leaving

bar he was struck by subway train, resulting in injuries,

did not constitute causes of actions under Dram Shop

Act (General Obligations Law 11--101), by operation

ofsection 65 of Alcoholic Beverage Control Law, or for

common--law negligence; there was no common--law duty

to protect person whose injuries are results of his or her

own voluntary intoxication, cause of action under Dram

Shop Actis limited to third party injured or killed by in-

toxicated person, and section 65 of Alcoholic Beverage

Control Lawdoes not create independent statutory cause

of action.

COUNSEL: For Plaintiff--Respondent: Richard ToddHunter.

For Defendants--Appellants: Joseph DeDonato.

JUDGES: Concur----Buckley, P.J., Tom, Ellerin and

Williams, JJ.

OPINION: [*301] [**318] Order, Supreme Court,

Bronx County (Jerry Crispino, J.), entered January 14,

2003, which denied defendants--appellants' motion to dis-

miss the fourth, fifth and sixth causes of action of the

verified complaint pursuant toCPLR 3211 (a) (7)for fail-ure to state a cause of action, unanimously reversed, on

the law, without costs, the motion granted and the matter

remanded for further proceedings.

Plaintiff alleges in the complaint that on November

1, 2001, he became intoxicated as a patron of defendant

Sports Bar, by drinking alcohol served by defendant's

employees, and that after leaving the bar he was struck

by a subway train, resulting in injuries. He asserts claims

against the tavern andits owners under the Dram Shop Act

set forth in General Obligations Law 11--101, as well

as by operation ofsection 65 of the Alcoholic Beverage

Control Law, and for negligence. [***2] However, plain-

tiff has no remedy under the facts as alleged.

New York courts have not imposed a common--law

duty to protect a person whose injuries are results of his

or her own voluntary intoxication, and have refused to

recognize a common--law[*302] cause of action against

providers of alcoholic beverages for injuries to such per-

sons (Sheehy v Big Flats Community Day, 73 N.Y.2d 629,

636, 541 N.E.2d 18, 543 N.Y.S.2d 18 [1989]; Livelli v

Teakettle Steak House, 212 A.D.2d 513, 622 N.Y.S.2d

109 [1995]). The cause of action under the Dram Shop

Act, a statutory vehicle for relief distinct from the com-

mon law, is limited to a third party injured or killed by

an intoxicated person and does not authorize recovery

for injuries sustained by the person whose own volun-

tary intoxication resulted from the sale (Sheehy at 635;

cf. Rutledge v Rockwells of Bedford, 200 A.D.2d 36, 41,

613 N.Y.S.2d 179 [1994]). Moreover we have long rec-

ognized thatsection 65 of the Alcoholic Beverage Control

Lawdoes not create an independent statutory cause of ac-

tion (Moyer v Lo Jim Cafe, 19 A.D.2d 523, 240 N.Y.S.2d277 [1963][***3] ,affd 14 N.Y.2d 792, 200 N.E.2d 212,

251 N.Y.S.2d 30 [1964]).

Concur----Buckley, P.J., Tom, Ellerin and Williams, JJ.