Opinion
June 22, 1990
Appeal from the Supreme Court, Ontario County, Henry, Jr., J.
Present — Boomer, J.P., Green, Pine, Davis and Lowery, JJ.
Order unanimously reversed on the law without costs and motion granted. Memorandum: The court erred in denying defendants' motion to dismiss plaintiffs' complaint because Sheehy v. Big Flats Community Day ( 73 N.Y.2d 629) effectively overruled the sole basis for our holding in Stambach v. Pierce ( 136 A.D.2d 329) by holding that Penal Law § 260.20 (4) does not give rise to a private right of action in favor of a person under the legal purchase age who is injured as a result of his own alcohol consumption. On the original motion to dismiss, plaintiff had contended that a negligence cause of action in favor of such a person could be based on violation of Penal Law § 260.20 (4), Alcoholic Beverage Control Law § 65 (1), and General Obligations Law § 11-100. Supreme Court had ruled that the General Obligations Law did not create a cause of action in favor of the intoxicated recipient of the beverage. We had ruled that the Alcoholic Beverage Control Law did not. In light of Sheehy, we do not perceive any remaining basis for liability alleged in this complaint.