The courts have consistently held that since the Dram Shop Act (General Obligations Law § 11-101) represents the creation of a liability not previously existing in the common law, it should be construed narrowly (Delamater v Kimmerle, 104 AD2d 242; Wright v Sunset Recreation, 91 AD2d 701). Consistent with the above, it has always been my understanding that the Dram Shop Act only created a statutory right of action against one who unlawfully sells liquor to an intoxicated person as that term is defined in Alcoholic Beverage Control Law § 65 (2) (see, Harris v Hurlburt, 83 Misc 2d 626; McNally v Addis, 65 Misc 2d 204; Bohner, Some Practical Aspects of Dram Shop Litigation, 51 NY St BJ 287, 289 [June 1979]; cf., Westbrook v Miller, 98 App Div 590).
In my view, the interpretation suggested by the majority is an expansion of the scope of coverage provided by the Dram Shop Act never intended by the Legislature. A review of the lengthy history of the Dram Shop Act reveals that it was intended to apply only to those situations where the seller had some notice of a potential violation of the Dram Shop Act (McNally v Addis, supra; Bohner, Some Practical Aspects of Dram Shop Litigation, 51 NY St BJ 287 [June 1979]; see also, L 1986, ch 750, § 1). Pursuant to my reading of the Dram Shop Act, the seller would have notice since the intoxication or reasonable inference thereof must be recognizable to constitute a sale in violation of the Alcoholic Beverage Control Law § 65 (2). On the other hand, an illegal sale to an underage person requires no such cognizance (Penal Law § 260.20 [4]; Alcoholic Beverage Control Law § 65 [1]; People v Gar Bob Corp., 49 Misc 2d 88). Moreover, imposition of Dram Shop Act liability upon the alleged sale to an underage person could produce unprecedented difficulties for a defendant to refute the allegations concerning a sale. Since under the majority’s interpretation it would be possible for a sale to take place months prior to the intoxication which resulted in an acci*43dent, defendant would thus be at a loss to contest the issue of unlawful sale and causation. Accordingly, I would affirm Supreme Court’s order and judgment.
Mahoney, P. J., Casey and Harvey, JJ., concur with Weiss, J.; Kane, J., concurs in part and dissents in part in an opinion.
Order and judgment modified, on the law, without costs, by reversing so much thereof as dismissed the Dram Shop Act causes of action brought by plaintiffs Donna J. Gaar and Alfred J. Peek in their individual capacities, and, as so modified, affirmed.