Appellate Division of the Supreme Court of the State of New York, Fourth Department.
Order unanimously reversed, with costs, motion granted and third-party complaint dismissed.
Memorandum:
The third-party defendant (Smith) appeals from an order denying his motion to dismiss the third-party complaint. Plaintiff's complaint states a cause of action under the "Dram Shop Act" (General Obligations Law, § 11-101; Alcoholic Beverage Control Law, §§ 65, 130, subd. 3) as well as a cause of action in negligence. The sale of intoxicating liquor to an intoxicated person is active wrongdoing giving rise to no claim over against the intoxicated person (Yamonaco v. Murphy, 38 Misc.2d 585). The complaint alleges that plaintiff was assaulted by Smith in defendant's restaurant and sustained injuries as the result of defendant's negligence in failing properly to supervise the premises, in failing to afford protection to plaintiff and in failing to control the conduct of other patrons. "A claim over against a third person charging the third person with active negligence will be allowed if the original complaint can reasonably be interpreted as including an allegation of passive negligence on the part of the defendant * * * Conversely, where the defendant is alleged to be guilty only of active as distinguished from passive negligence impleader is improper as a matter of law." (Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447, 455.) "Acts of omission constitute active negligence as well as acts of commission" (Bush Term. Bldgs. v. Luckenbach S. S. Co., 9 N.Y.2d 426, 430). If none of the allegations of the complaint can be construed as charging defendant with liability without active fault on its part, the defendant may not seek recovery over from a third person (Bush Term. Bldgs. v. Luckenbach S. S. Co., supra, pp. 426, 430, 431; Dole v. Dow Chem. Co., 35 A.D.2d 149, 151; Fiandach v. Mindnich, 33 A.D.2d 1096). None of the allegations of the complaint herein can be construed as charging defendant with liability without active fault on its part. The allegations charge defendant only with active negligence and wrongdoing. It follows that defendant may not seek recovery over from appellant. (Putvin v. Buffalo Elec. Co., supra.)
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