Bizzell v. N. E. F. S. Rest, Inc.

27 A.D.2d 554, 275 N.Y.S.2d 858, 1966 N.Y. App. Div. LEXIS 2819

Opinion

Order of the Supreme Court, Kings County, dated April 25, 1966, modified so as to provide that appellant’s motion for summary judgment is granted as to the second and third causes of action, which causes, for the purpose of entry of judgment in favor of appellant thereon, are hereby severed. As so modified, order affirmed, without costs. In the second cause of action it is alleged that appellant served the injured plaintiff liquor knowing that she was already intoxicated and that said plaintiff fell while leaving the premises. There was no special duty resting upon appellant to protect said plaintiff from the results of her voluntary intoxication (Moyer v. Lo Jim Cafe, 19 A D 2d 523, affd. 14 N Y 2d 792). In the third cause of action it is alleged that said sale of liquor violated section 65 of the Alcoholic Beverage Control Law. That statute does not create a cause of action in favor of the person whose intoxication has resulted from an illegal sale. Hence plaintiffs’ action can only be for ordinary negligence (Moyer v. Lo Jim Cafe, supra). Beldock, P. J., Ughetta, Christ, Hill and Benjamin, JJ., concur.