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PLAINTIFF’S HUSBAND ALLEGEDLY BECAME INTOXICATED AT DEFENDANT’S RESTAURANT, FELL DOWN A STAIRCASE AND DIED FROM HIS INJURIES; PURSUANT TO THE DRAM SHOP ACT, PLAINTIFF WIFE SUED THE RESTAURANT BOTH INDIVIDUALLY AND AS EXECUTOR OF DECEDENT’S ESTATE; HER INDIVIDUAL SUIT SURVIVED DISMISSAL; BUT THE SUIT ON BEHALF OF DECEDENT’S ESTATE WAS DISMISSED; AN INTOXICATED PERSON, OR THE ESTATE OF AN INTOXICATED PERSON, CAN NOT SUE UNDER THE DRAM SHOP ACT FOR INJURIES RESULTING FROM INTOXICATION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined Vera, the widow of the allegedly intoxicated decedent, could sue under the Dram Shop Act individually, but not as a representative of the decedent’s estate. Decedent fell down a staircase at defendant restaurant (Shuko):

In this Dram Shop Act action, plaintiffs allege that defendant Shuko, a restaurant, repeatedly served alcoholic beverages to the decedent, causing his intoxication and subsequent fall down a staircase inside the restaurant. The decedent sustained severe injuries which, according to plaintiffs, later resulted in his death. Vera, who is the decedent’s widow, is suing both in her individual capacity and as executor of the decedent’s estate, and is seeking damages, inter alia, for loss of support. * * *

…Vera’s allegations that Shuko sold alcohol to the decedent despite his being visibly intoxicated, and that she was personally injured by the loss of means of support is sufficient to survive a motion to dismiss … . …

However, while “[t]he Dram Shop Act creates a cause of action in favor of a third party injured or killed by an intoxicated person, [ ] it does not create a cause of action in favor of the intoxicated person” … . Accordingly, “an intoxicated person or his or her estate cannot maintain a cause of action under the Dram Shop Act for injuries sustained as a result of that person’s own intoxication” … . The second cause of action against defendant Shuko therefore fails to state a cause of action insofar as it is asserted on behalf anyone other than plaintiff Vera individually. Vera v BH Broadway Owner LLC, 2026 NY Slip Op 05921, First Dept 10-13-26

Practice Point: Here the Dram Shop Act was applied where an intoxicated restaurant patron fell down a restaurant staircase and subsequently died from his injuries. Decedent’s wife could sue the restaurant under the Dram Shop Act in her individual capacity for loss of support. However, decedent’s wife could not sue under the Dram Shop Act on behalf of the decedent’s estate. …  “[A]n intoxicated person or his or her estate cannot maintain a cause of action under the Dram Shop Act for injuries sustained as a result of that person’s own intoxication” … .

 

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