| Rudden v Bernstein |
| 2009 NY Slip Op 02983 [61 AD3d 736] |
| April 14, 2009 |
| Appellate Division, Second Department |
| Gina Rudden, Appellant-Respondent, v Francine Bernsteinet al., Defendants, Kaitlin Smiraldo et al., Respondents-Appellants, and Dennis Aveta et al.,Respondents. |
—[*1] Schondebare & Korcz, Ronkonkoma, N.Y. (Amy B. Korcz of counsel), forrespondent-appellant Kaitlin Smiraldo. Kuczinski, Vila & Associates, LLP, Yorktown Heights, N.Y. (Gary Cusano of counsel), forrespondent-appellant Angie Westrack. Epstein & Grammatico, Hauppauge, N.Y. (Helayne D. Rojas of counsel), for respondentsDennis Aveta and Debra Aveta. Chesney & Murphy, LLP, Baldwin, N.Y. (Henry D. Nelkin of counsel), for respondentTown of Islip.
In an action to recover damages for personal injuries, etc., the plaintiff appeals, as limited byher brief, from so much of an order of the Supreme Court, Suffolk County (R. Doyle, J.), datedJanuary 2, 2008, as granted that branch of the motion of the defendant Town of Islip which wasfor summary judgment dismissing the amended complaint insofar as asserted against it, grantedthat branch of the cross motion of the defendants Dennis Aveta and Debra Aveta which was forsummary judgment dismissing the amended complaint insofar as asserted against them, anddenied that branch of her cross motion which was for leave to amend the complaint, thedefendant Kaitlin Smiraldo cross-appeals, as limited by her notice of cross appeal and brief, andthe defendant Angie [*2]Westrack separately cross-appeals, fromso much of the same order as denied those branches of their respective cross motions which werefor summary judgment dismissing so much of the fourth cause of action as sought to recovercompensatory damages and the fifth and ninth causes of action and all related cross claimsinsofar as asserted against them.
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the separate cross motions of the defendants Kaitlin Smiraldo and AngieWestrack which were for summary judgment dismissing so much of the fourth cause of action assought to recover compensatory damages and the fifth cause of action asserted by the plaintiffGina Rudden, on behalf of the infant Bryan Rudden, and so much of the ninth cause of action assought to recover damages for loss of services, and all related cross claims, and substitutingtherefor provisions granting those branches of the cross motions; as so modified, the order isaffirmed insofar as appealed from and cross-appealed from, with one bill of costs to thedefendants Dennis Aveta, Debra Aveta, and the Town of Islip, appearing separately and filingseparate briefs, payable by the plaintiff.
The defendants Dennis Aveta and Debra Aveta (hereinafter the Avetas) hosted a birthdayparty for their daughter, Danielle, on the night of January 31, 2004, which was attended by 13-and 14-year old children, including the infant Bryan Rudden (hereinafter Bryan). The defendantsKaitlin Smiraldo and Angie Westrack provided vodka and rum for some of the underage partyguests, who left the Avetas' residence and drank the alcohol in the school yard of a nearbyelementary school. Bryan returned to the party drunk—tests would later show that he hada blood-alcohol level of .082%.
Debra Aveta testified at her deposition that she began to realize that a number of children atthe party were intoxicated when they became sick. Parents arrived to take their children home,and one of the infant party guests told Debra Aveta that his ride was there. Debra Aveta saw avehicle in the street; she saw five boys, including Bryan, heading towards the car. Bryan did notgo home in the car: he and a friend started to walk home. It had snowed recently, and the roadwas plowed to a width of 14 feet. On the way home, Bryan was hit by a car and sustained seriousinjuries.
Bryan's mother, the plaintiff Gina Rudden, individually and on his behalf, commenced theinstant action against, among others, the Avetas, the Town of Islip, Kaitlin Smiraldo, and AngieWestrack, to recover damages for his personal injuries, and for her loss of services and formedical expenses she incurred on his behalf. The cause of action against the Avetas was basedon negligent supervision. The cause of action against the Town was based, inter alia, upon itsfailure to clear a wider path on the roadway. The causes of action against Smiraldo and Westrackwere based on violation of General Obligations Law § 11-100 and common-lawnegligence.
The Avetas, the Town, Smiraldo, and Westrack all moved for summary judgment dismissingthe complaint and all cross claims insofar as asserted against them. The plaintiff cross-moved,among other things, for leave to amend the complaint to include an additional cause of actionagainst the Avetas.
The Supreme Court denied those branches of Smiraldo's and Westrack's separate crossmotions which were for summary judgment dismissing so much of the fourth cause of action assought to recover compensatory damages and the fifth and ninth causes of action and all related[*3]cross claims insofar as asserted against them. The courtgranted the motions of the Town and the Avetas. In addition, the court denied that branch of theplaintiff's cross motion which was for leave to amend the complaint. The plaintiff Smiraldo andWestrack appeal.
The Supreme Court erred in denying those branches of Smiraldo's and Westrack's crossmotions which were for summary judgment dismissing so much of the fourth cause of action assought to recover compensatory damages and the fifth cause of action asserted by the plaintiffGina Rudden on behalf of Bryan, and related cross claims, since Bryan cannot recover damagesresulting from his own voluntary intoxication (see Luczak v Town of Colonie, 233AD2d 691 [1996]). General Obligations Law § 11-100 provides for a right of civilrecovery against a person who knowingly provides alcohol to a minor, but only for peopleinjured by the actions of the intoxicated minor (see Sheehy v Big Flats Community Day,73 NY2d 629, 635 [1989]). It does not provide a right of recovery for injuries suffered byintoxicated minors as a result of their own intoxication (id.; McArdle v 123 Jackpot, Inc., 51 AD3d743 [2008]; Searley v WegmansFood Mkts., Inc., 24 AD3d 1202 [2005]; Etu v Cumberland Farms, 148 AD2d821 [1989]). Further, the plaintiff cannot recover pursuant to General Obligations Law §11-100 for loss of services as alleged in the ninth cause of action (see Valicenti vValenze, 68 NY2d 826, 829 [1986]; McArdle v 123 Jackpot, Inc., 51 AD3d at 745).However, she can recover for medical expenses she incurred on behalf of the child, as asserted inthe ninth cause of action (see McArdle v 123 Jackpot, Inc., 51 AD3d at 745).
The Supreme Court properly granted that branch of the Avetas' motion which was forsummary judgment dismissing the amended complaint insofar as asserted against them, sincethey did not provide their guests with alcohol, nor did it appear that alcohol was consumed ontheir premises, and the accident itself occurred after Bryan had left their property, apparently inthe company of his friends and a responsible adult who was driving them home (see Moreno v Weiner, 39 AD3d830 [2007]; Lombart vChambery, 19 AD3d 1110 [2005]).
The Supreme Court also properly granted that branch of the Town's motion which was forsummary judgment dismissing the amended complaint insofar as asserted against it. The partiesdo not dispute that the Town never received prior written notice of any failure to plow snow, asis required by section 47A-3 of the Code of the Town of Islip as a condition precedent tomaintaining this action (see Sommer v Town of Hempstead, 271 AD2d 434 [2000];Cipriano v City of New York, 96 AD2d 817 [1983]). Moreover, there is no evidence inthe record to demonstrate that the Town affirmatively created a dangerous condition (seeAlbanese v Town of Hempstead, 176 AD2d 697 [1991]; Buccellato v County ofNassau, 158 AD2d 440 [1990]; Kirschner v Town of Woodstock, 146 AD2d 965[1989]; Radicello v Village of Spring Val., 115 AD2d 466 [1985]).
The Supreme Court providently exercised its discretion in denying that branch of theplaintiff's cross motion which was for leave to amend the complaint, since the proposedamendment was patently devoid of merit (see Mackenzie v Croce, 54 AD3d 825, 826 [2008]; Lucido v Mancuso, 49 AD3d 220,222 [2008]).
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Mastro, J.P., Dickerson, Belen and Chambers, JJ., concur. [See 2008NY Slip Op 30068(U).]