
    Anthony Marrone, Plaintiff, v. Angelina Di Castro, as Executrix and Trustee under the Will of Vincenzo Di Castro, Deceased, Defendant.
    County Court, Oneida County,
    August 17, 1959.
    
      
      8averio M. Flemma for defendant.
    
      Calli, Calli & Palewshi (Stanley B. Palewshi of counsel), for plaintiff.
   John J. Walsh, J.

The motion is in all respects denied. The complaint in essence alleges that plaintiff was assaulted by a patron of defendant’s tavern on May 2, 1958 at Sylvan Beach, New York, and that the assailant was intoxicated and “was under the influence of intoxicating liquors which the defendant unlawfully served to said person ” as set forth therein.

The complaint appears to be in usual form and based upon section 16 of the Civil Rights Law and subdivision 2 of section 65 of the Alcoholic Beverage Control Law. Since on this type of motion, all of the allegations of the complaint are deemed admitted for the purposes of the motion and no affidavits or other supporting papers can be used or relied upon by the defendant for the purposes of dismissing the complaint on this motion, the complaint states facts sufficient to constitute a cause of action.

Since section 16 of the Civil Rights Law specifically states that in any action such person shall have a right to recover actual and exemplary damages the motion must be denied. {Kinney v. 1809 Forest Ave., 7 Misc 2d 1.)

Motion denied, with $10 costs to abide the event.  