Paul v. Hogan

• Citation: 392 N.Y.S.2d 766,56 A.D.2d 723
• Parties: Melvina R. PAUL, Individually and as Administratrix of the Estate of Patrick F. Paul, Deceased, Appellant, v. Robert B. HOGAN and Elizabeth Hogan, Respondents.
• Decision Date: 25 February 1977
• Court: New York Supreme Court Appellate Division

Page 766

392 N.Y.S.2d 766

56 A.D.2d 723

Melvina R. PAUL, Individually and as Administratrix of the Estate of Patrick F. Paul, Deceased, Appellant, v. Robert B. HOGAN and Elizabeth Hogan, Respondents.

Supreme Court, Appellate Division, Fourth Department.

Feb. 25, 1977.

Paul William Beltz, P.C., Buffalo, for appellant.

Brownstein, Canale, Madden & Burke, Howard V. Burke, Buffalo, for respondents.

Before MOULE, J.P., and CARDAMONE, SIMONS, DILLON and WITMER, JJ.

MEMORANDUM:

Plaintiff, individually and as administratrix of decedent's estate, commenced this negligence action to recover damages for pain and suffering and wrongful death occurring as a result of fatal injuries suffered by decedent on May 25, 1975 when he was struck by a motorcycle owned and operated by Ronald Austin and on which Frederick Frew was a passenger. Defendants in this action are Robert B. and Elizabeth Hogan who, on the evening of the accident, had given a party which decedent, Austin and Frew had attended and at which alcoholic beverages were served.

On a motion to dismiss pursuant to CPLR 3211(a)(7) the question before the court is whether a proper cause of action has been stated, not whether the cause of action can be proved (Amico v. Erie County Legislature,64 Misc.2d 829, 315 N.Y.S.2d 926, revd. on other grds., 36 A.D.2d 415, 321 N.Y.S.2d 134, affd. 30 N.Y.2d 729, 332 N.Y.S.2d 898, 283 N.E.2d 769). Accordingly, all of the factual allegations in the complaint must be assumed to be true and the pleadings as a whole are deemed to allege whatever cause of action that can be implied from its statement by fair and reasonable intendment (Dulberg v. Mock, 1 N.Y.2d 54, 56, 150 N.Y.S.2d 180, 181, 133 N.E.2d 695, 696; Condon v. Associated Hospital Service, 287 N.Y. 411, 414, 40 N.E.2d 230, 231; H. M. Brown, Inc. v. Rpice, 38 A.D.2d 680, 327 N.Y.S.2d 251).

A liberal reading of plaintiff's complaint discloses three possible theories upon which liability may be founded. The first is defendants' alleged negligence under either the Dram Shop Act or general principles of common law negligence in serving alcoholic beverages to decedent. However, insofar as plaintiff attempts to plead a cause of action under the Dram Shop Act, it must be dismissed since aside from the failure to allege any unlawful sale of alcoholic beverages it is well settled that '(n)o cause of action exists in favor of the party whose intoxication has resulted from the illegal sale' (Moyer v. Lo Jim Cafe, Inc., 19 A.D.2d 523--524, 240 N.Y.S.2d 277, 279, affd. 14 N.Y.2d 792, 251 N.Y.S.2d 30, 200 N.E.2d 212). Nor is this theory of recovery permissible under the general principles of common law negligence since 'there is no special duty resting on an owner of premises to protect a party from the results of his voluntary intoxication' (3 Warren's Negligence, Intoxicated Persons, § 1.01, p. 320; see also Vadasy v. Bill Feigel's Tavern, Inc., 55 A.D.2d 1011, 391 N.Y.S.2d 999, decided Jan. 14, 1977).

The second possible theory of recovery is de...