Moyer v. Lo Jim Cafe, Inc.

CourtNew York Supreme Court Appellate Division
Writing for the CourtPER CURIAM
Citation19 A.D.2d 523,240 N.Y.S.2d 277
Decision Date21 May 1963
PartiesRose B. MOYER, Plaintiff-Respondent, v. LO JIM CAFE, INC., Defendant-Appellant.

Page 277

240 N.Y.S.2d 277
19 A.D.2d 523
Rose B. MOYER, Plaintiff-Respondent,
v.
LO JIM CAFE, INC., Defendant-Appellant.
Supreme Court, Appellate Division, First Department.
May 21, 1963.

Page 278

J. M. Cunneen, New York, City, for defendant-appellant.

R. Mishkin, New York City, for plaintiff-respondent.

Before BOTEIN, P. J., and BREITEL, RABIN, EAGER and BASTOW, JJ.

PER CURIAM.

Judgment unanimously reversed on the law and on the facts, with costs to appellant, and complaint dismissed. The complaint in this action, as amplified by the bill of particulars, alleges that the injury received by plaintiff, a patron in the cafe of defendant, was occasioned by the negligent acts of defendant and the maintenance of 'the establishment contrary to the rights granted to (defendant) by the State Liquor Authority.' The trial court charged that portion of the provisions of section 65 of the Alcoholic Beverage Control Law prohibiting the sale or gift of any alcoholic beverage to an intoxicated person. The jury was told that a violation thereof was some evidence of negligence but was not conclusive. This was error. The Civil Rights Law (§ 16) grants a statutory right of action against one who sells or assists in procuring liquor for an intoxicated person. This section creates a cause of action

Page 279

unknown to the common law and not based on negligence. (2 N.Y.Jur., Alcoholic Beverages, § 116.) Furthermore, section 16 must be read in conjunction with section 65 of the Alcoholic Beverage Control Law but the latter section creates no independent statutory cause of action. Moreover, the cause authorized by section 16 is limited to a third party injured or killed by the intoxicated person, by reason of his intoxication. No cause of action exists in favor of the party whose [19 A.D.2d 524] intoxication has resulted from the illegal sale. (Scatorchia v. Caputo, 263 App.Div. 304, 32 N.Y.S.2d 532.) It follows that plaintiff's action could only be one for ordinary negligence. Judged by the principles applicable thereto the proof is overwhelming that plaintiff's fall and resulting injury were caused in part by her voluntary intoxicated condition. There was no special duty resting upon defendant to protect plaintiff from the results of her voluntary...

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49 practice notes
  • McNally v. Addis
    • United States
    • United States State Supreme Court (New York)
    • December 3, 1970
    ...section 65, subdivision Page 170 2 of the Alcoholic 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 [65 Misc.2d 215] Negligence, Intoxicated Persons § 4.02) and......
  • Salem Group v. Oliver
    • United States
    • Superior Court of New Jersey
    • May 8, 1991
    ...Act) creates a cause of action in strict liability unknown 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 pe......
  • Henry–lee v. the City of N.Y., No. 08 Civ. 0089(DC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 30, 2010
    ...N.E.2d 1365 (1992); Johnson v. Verona Oil, Inc., 36 A.D.3d 991, 827 N.Y.S.2d 747, 749 n. 1 (3d Dep't 2007); Moyer v. Lo Jim Cafe, Inc., 19 A.D.2d 523, 240 N.Y.S.2d 277, 278 (1st Dep't 1963). Accordingly, I need not address whether JMR did in fact breach § 65. To the extent plaintiff attempt......
  • Manfredonia v. American Airlines, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • May 14, 1979
    ...alcoholic beverages in violation of the "applicable laws". 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 arise......
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49 cases
  • McNally v. Addis
    • United States
    • United States State Supreme Court (New York)
    • December 3, 1970
    ...section 65, subdivision Page 170 2 of the Alcoholic 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 [65 Misc.2d 215] Negligence, Intoxicated Persons § 4.02) and......
  • Salem Group v. Oliver
    • United States
    • Superior Court of New Jersey
    • May 8, 1991
    ...Act) creates a cause of action in strict liability unknown 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 pe......
  • Henry–lee v. the City of N.Y., No. 08 Civ. 0089(DC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 30, 2010
    ...N.E.2d 1365 (1992); Johnson v. Verona Oil, Inc., 36 A.D.3d 991, 827 N.Y.S.2d 747, 749 n. 1 (3d Dep't 2007); Moyer v. Lo Jim Cafe, Inc., 19 A.D.2d 523, 240 N.Y.S.2d 277, 278 (1st Dep't 1963). Accordingly, I need not address whether JMR did in fact breach § 65. To the extent plaintiff attempt......
  • Manfredonia v. American Airlines, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • May 14, 1979
    ...alcoholic beverages in violation of the "applicable laws". 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 arise......
  • Request a trial to view additional results

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