Moyer v. Lo Jim Cafe, Inc.

Decision Date04 June 1964
Citation251 N.Y.S.2d 30,14 N.Y.2d 792
Parties, 200 N.E.2d 212 Rose B. MOYER, Appellant, v. LO JIM CAFE, INC., Respondent.
CourtNew York Court of Appeals Court of Appeals

Appeal from Supreme Court, Appellate Division, First Department, 19 A.D.2d 523, 240 N.Y.S.2d 277.

Action by cafe patron against cafe operator for patron's injuries in fall.

The Supreme Court, Trial Term, New York County, Rocco A. Parella, J., gave judgment on jury's verdict for plaintiff, and the defendant appealed.

The Appellate Division reversed the judgment and dismissed the complaint and held that the action could only be one for ordinary negligence and that the proof was overwhelming that plaintiff's fall and resulting injury were caused in part by her voluntary intoxicated condition and that there was no special duty resting upon defendant to protect plaintiff from the results of her voluntary intoxication and that the intoxicated condition of the plaintiff was a relevant concurring cause of the injury constituting contributory negligence that barred recovery.

The plaintiff appealed to the Court of Appeals.

Meiselman, Mishkin & Reilly, New York City (Robert Mishkin, New York City, of counsel), for plaintiff-appellant.

Brady, Devlin, Grubbs, Lawler & Reid, Brooklyn (John M. Cunneen, New York City, of counsel), for defendant-respondent.

Judgment affirmed, without costs, upon the ground that there is no sufficient proof that plaintiff's accident was caused by the negligence of defendant. We pass upon no other question.

All concur.

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43 cases
  • Salem Group v. Oliver
    • United States
    • New Jersey Superior Court — Appellate Division
    • May 8, 1991
    ...to the common law and not based upon negligence. (Moyer v. Lo Jim Cafe, Inc., 19 A.D.2d 523, 240 N.Y.S.2d 277, affd. 14 N.Y.2d 792, 251 N.Y.S.2d 30, 200 N.E.2d 212; McNally v. Addis, 65 Misc.2d 204, 317 N.Y.S.2d 157). The injured persons' reliance upon a violation of this section in asserti......
  • McNally v. Addis
    • United States
    • New York Supreme Court
    • December 3, 1970
    ...Beverage Control Law has been read into the Dram Shop Act (Moyer v. Lo Jim Cafe, 19 A.D.2d 523, 240 N.Y.S.2d 277, affd. 14 N.Y.2d 792, 251 N.Y.S.2d 30, 200 N.E.2d 212; 3 Warren's Negligence, Intoxicated Persons § 4.02) and recovery may be had where a sale is made to an intoxicated person, o......
  • Manfredonia v. American Airlines, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • May 14, 1979
    ...The dram shop act is not based on common-law negligence (Moyer v. Lo Jim Cafe, 19 A.D.2d 523, 240 N.Y.S.2d 277, affd. 14 N.Y.2d 792, 251 N.Y.S.2d 30, 200 N.E.2d 212; 2 N.Y.Jur., Alcoholic Beverages, § 116, p. The question then arises whether the statute applies extraterritorially. III In 18......
  • Patton v. Carnrike
    • United States
    • U.S. District Court — Northern District of New York
    • March 6, 1981
    ... ... See Manfredonia v. American Airlines, Inc., 68 A.D.2d 131, 416 N.Y.S.2d 286 (2d Dep't 1979). See also Trapp v. 4-10 Investment Corp., 424 ... § 260.20(4) ...         22 See Mitchell v. The Shoals, Inc., supra note 18; Moyer v. Lo-Jim Cafe, Inc., 19 A.D.2d 523, 240 N.Y.S.2d 277 (1st Dep't 1963), aff'd, 14 N.Y.2d 792, 251 ... ...
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