King v. Ees-Tee Restaurant, Inc.

• Decision Date: 18 February 1971
• Docket Number: EES-TEE
• Citation: 319 N.Y.S.2d 791,36 A.D.2d 680
• Parties: Ronald KING, Plaintiff v.RESTAURANT, INC., Defendant,RESTAURANT, INC., Third-Party Plaintiff-Respondent v. George L. SMITH, Jr., Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 791

319 N.Y.S.2d 791

36 A.D.2d 680

Ronald KING, Plaintiff v. EES-TEE RESTAURANT, INC., Defendant, EES-TEE RESTAURANT, INC., Third-Party Plaintiff-Respondent v. George L. SMITH, Jr., Third-Party Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department.

Feb. 18, 1971.

Hyman T. Maas, Stephen A. Maas, Rochester, for appellant.

Bayer & Dupee, Jon Charles Dupee, Rochester, for respondent.

Before DEL VECCHIO, J.P., and MARSH, GABRIELLI, MOULE and HENRY, JJ.

MEMORANDUM:

The third party defendant (Smith) appeals from an order denying his motion to dismiss the third party complaint. Plaintiff's complaint states a cause of action under the 'Dram Shop Act' (General Obligations Law Sec. 11--101; Alcoholic Beverage Control Law Sections 65 and 130, subd. 3) as well as a cause of action in negligence.

The sale of intoxicating liquor to an intoxicated person is active wrongdoing giving rise to no claim over against the intoxicated person (Yamonaco v. Murphy, 38 Misc.2d 585, 236 N.Y.S.2d 452).

The complaint alleges that plaintiff was assaulted by Smith in defendant's restaurant and sustained injuries as the result of defendant's negligence in failing properly to supervise the premises, in failing to afford protection to plaintiff and in failing to control the conduct of other patrons.

'A claim over against a third person charging the third person with active negligence will be allowed if the original complaint can reasonably be interpreted as including an allegation of passive negligence on the part of the defendant * * *. Conversely, where the defendant is alleged to be guilty only of active as distinguished from passive negligence impleader is improper as a matter of law.' (Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447, 455, 186 N.Y.S.2d 15, 21, 158 N.E.2d 691, 697, 'Acts of omission constitute active negligence as well as acts of commission' (Bush Term. Bldgs. Co. v. Luckenbach S.S. Co., 9 N.Y.2d 426, 430, 214 N.Y.S.2d 428, 431, 174 N.E.2d 516, 517). If none of the allegations of the complaint can be construed as charging defendant with liability without active fault on its part, the defendant may not seek recovery over from a third person (Bush Term. Bldgs. Co. v. Luckenbach S.S. Co., supra pp. 426, 430, 431, 214 N.Y.S.2d pp. 428, 430, 432, 174 N.E.2d pp. 516, 518, 519; Dole v. Dow Chemical Co., 35 A.D.2d 149, 151, 316 N.Y.S.2d 348, 351; Fiandach v. Mindnich, 33 A.D.2d 1096, 308 N.Y.S.2d 247).

None of the allegations of the complaint...