Opinion
May 27, 1994
Appeal from the Supreme Court, Oneida County, Grow, J.
Present — Denman, P.J., Pine, Fallon, Callahan and Davis, JJ.
Judgment unanimously affirmed without costs. Memorandum: Plaintiff's notice of appeal states that this appeal is taken from an order. A judgment was entered on the same date as the order from which this appeal is taken. Where, as here, the order is subsumed within a judgment, the appeal is from the judgment and not from the order (see, Hughes v. Nussbaumer, Clarke Velzy, 140 A.D.2d 988). We exercise our discretion to disregard the misstatement in the notice of appeal (see, CPLR 5520 [c]), and we deem the appeal to have been taken from the judgment (see, Soto v. Montanez, 201 A.D.2d 876; Hughes v. Nussbaumer, Clarke Velzy, supra).
Supreme Court properly granted defendants' motion pursuant to CPLR 4401 and dismissed the complaint for failure to establish a prima facie case. Viewing the evidence in the light most favorable to plaintiff, we conclude that there is no rational process by which the jury could have found in favor of plaintiff and against defendants on the evidence presented (see, Schafer v. Standard Ry. Fusee Corp., 200 A.D.2d 564; Kleinmunz v. Katz, 190 A.D.2d 657). Inasmuch as plaintiff was unable to identify the person who struck him, he was unable to offer proof that the unknown patron who allegedly struck him at defendants' establishment was either underage or intoxicated, that defendants knowingly caused the patron to become intoxicated or that defendants knew or had reason to believe that the patron was underage. Thus, plaintiff's cause of action alleging a violation of General Obligations Law § 11-101 was properly dismissed (see, Sherman v. Robinson, 80 N.Y.2d 483, 487-488; Haskell v. Chautauqua County Fireman's Fraternity, 184 A.D.2d 12, 17, lv dismissed 81 N.Y.2d 954; Stewart v. Taylor, 167 A.D.2d 846, lv denied 77 N.Y.2d 805).
Additionally, plaintiff failed to establish a prima facie case of common-law negligence. Defendants are under a common-law duty to "control the conduct of third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control" (D'Amico v Christie, 71 N.Y.2d 76, 85; see also, Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 637; Silver v. Sheraton-Smithtown Inn, 121 A.D.2d 711, 712). Plaintiff failed to offer proof either that defendants had the opportunity to control the patron or that defendants knew or were reasonably aware of the need for such control.