“Dram Shop Act” Claim Dismissal Affirmed

In Esposito v. Rail Bar & Grill Corp., 2019 NY Slip Op 01198 (App. Div. 2nd Dept. Feb. 20, 2019), the court affirmed the dismissal of plaintiff’s claim under New York General Obligations Law § 11-101, a/k/a the Dram Shop Act.

In sum, plaintiff alleged that the defendants served alcohol to the plaintiff’s assailants when those assailants were visibly intoxicated, in violation of Alcoholic Beverage Control Law § 65, and thereby contributed to the intoxication of the plaintiff’s assailants.

In reaching its conclusion, the court reasoned:

We agree with the Supreme Court’s determination granting that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of the Dram Shop Act. Viewing the evidence in the light most favorable to the plaintiff (see Pinilla v City of New York, 136 AD3d 774), the defendants established their prima facie entitlement to judgment as a matter of law dismissing that cause of action. The plaintiff testified at his deposition that the plaintiff himself ordered and paid for the drink which the plaintiff now claims Karl was unlawfully served, despite the fact that the plaintiff had already personally observed signs of Karl’s alleged visible intoxication. The plaintiff’s procurement of the allegedly unlawful drink for Karl precludes the plaintiff from recovering under the Dram Shop Act