VERA v. NNJ LLC LLC (2026)

Order, Supreme Court, New York County (Mary V. Rosado, J.), entered September 22, 2025, which denied the motion of defendants NNJ Restaurant LLC d/b/a Shuko and Eclipse Management LLC to dismiss the second cause of action of the verified first amended complaint alleging a violation of General Obligations Law § 11–101 (the Dram Shop Act), unanimously modified, on the law, to dismiss the second cause of action insofar as it is asserted on behalf of anyone other than plaintiff, Helen Vera individually, and otherwise affirmed, without costs.

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.

Supreme Court properly denied defendants' motion to dismiss the second cause of action pursuant to CPLR 3211(a)(7) for failure to state a cause of action, insofar as it is asserted by Vera, in her individual capacity.  “New York courts have repeatedly stated that a spouse ․ may bring an action individually under the statute to recover damages for economic loss resulting from the ․ death of the intoxicated person” (Lyons v. Tiedemann, 135 A.D.2d 509, 510–511 [2d Dept 1987];  see also General Obligations Law § 11–101).  Affording the complaint a liberal construction and according Vera the benefit of every reasonable inference (see Leon v. Martinez, 84 N.Y.2d 83, 88 [1994];  Bangladesh Bank v Rizal Commercial Banking Corp., 226 AD3d 60, 85–86 [1st Dept 2024] ), 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 (see Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 635 [1989];  Coughlin v. Barker Ave., Assoc., 202 A.D.2d 622, 623 [2d Dept 1994];  Lyons, 135 A.D.2d at 510–511;  see also Valicenti v. Valenze, 68 N.Y.2d 826, 828–829 [1986] ).

Defendants' technical parsing of the complaint, including the argument that plaintiff is actually seeking wrongful death damages, does not compel a different result at this stage of the proceeding.

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” (Estate of Feenin v Bombace Wine & Spirits, Inc., 188 AD3d 1001, 1003 [2d Dept 2020] [internal quotation marks omitted] ).  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” (Oursler v. Brennan, 67 AD3d 36, 40 [4th Dept 2009] [emphasis added];  see Estate of Feenin, 188 AD3d at 1003).  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.

We have considered the remaining arguments and find them unavailing.