Opinion
April 1, 1991
Appeal from the Supreme Court, Westchester County (Wood, J.).
Ordered that the order is affirmed, with one bill of costs.
The facts underlying this appeal were set forth in former Justice Weinstein's opinion on the parties' prior appeal (see, Allen v. County of Westchester, 109 A.D.2d 475), wherein it was determined that the plaintiff possessed no cause of action sounding in common law negligence for the injuries sustained by her husband as a result of his voluntary intoxication. On the instant motion the plaintiff has correctly conceded that none of her remaining causes of action are predicated upon a violation of the Dram Shop Act (General Obligations Law § 11-101; see, e.g., Bongiorno v. D.I.G.I., Inc., 138 A.D.2d 120) as liability attaches thereunder only for unlawful sales of alcohol. In this case, the plaintiff's decedent simply voluntarily over-indulged at a Christmas party at which he was a guest (see, D'Amico v Christie, 71 N.Y.2d 76). Accordingly, since the plaintiff's decedent, had he survived, would possess no viable cause of action to recover for the injuries he sustained as a result of his voluntary intoxication, his estate now possesses no viable cause of action for wrongful death (see, EPTL 5-4.1; Prink v Rockefeller Center, 48 N.Y.2d 309; see also, McDaniel v Clarkstown Cent. School Dist. No. 1, 110 A.D.2d 349; cf., Tepper v. Feldman, 117 A.D.2d 595). Judgment was thus properly awarded to the defendants as a matter of law on this cause of action, as well as on the plaintiff's derivative claim for loss of consortium (see, Siskind v. Norris, 152 A.D.2d 196, 198; Young v Robertshaw Controls Co., 104 A.D.2d 84).
We have reviewed the plaintiff's remaining contentions and find them to be without merit. Brown, J.P., Kooper, Harwood and Miller, JJ., concur.