Opinion
August 8, 1988
Appeal from the Supreme Court, Nassau County (Collins, J.).
Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and those branches of the motion which were to dismiss the first, second and seventh causes of action insofar as they are asserted against the appellant are granted.
The plaintiff Gary Campbell (hereinafter the plaintiff) was a victim of a sudden and unanticipated shooting by a fellow bar patron at the appellant's establishment. Prior to the shooting the assailant had purchased a drink for the plaintiff, and the plaintiff reciprocated. Under these circumstances, the plaintiff cannot sustain a cause of action predicated on common-law negligence against the appellant because the nature of the shooting incident was such that it was unforeseeable and could not have been guarded against (see, Silver v Sheraton-Smithtown Inn, 121 A.D.2d 711). Similarly, the plaintiff's cause of action based on Alcoholic Beverage Control Law § 65 must be dismissed. Alcoholic Beverage Control Law § 65 is to be read in conjunction with the Dram Shop Act (General Obligations Law § 11-101; see, Matalavage v Sadler, 77 A.D.2d 39, 42). The Dram Shop Act cause of action cannot withstand the plaintiff's own admission that he did not observe any visible signs that his attacker was intoxicated. In any event, recovery under the Dram Shop Act is precluded because the plaintiff procured an alcoholic beverage for the person who inflicted the injuries (see, Vandenburg v Brosnan, 129 A.D.2d 793, affd 70 N.Y.2d 940). Thompson, J.P., Weinstein, Rubin and Eiber, JJ., concur.