| Cannon v Giordano |
| 2012 NY Slip Op 02221 [93 AD3d 1329] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| Victoria J. Cannon et al., Appellants, v Tina M. Giordano et al.,Defendants, and Larry Snyder et al., Respondents. |
—[*1] Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (Thomas P. Cunningham ofcounsel), for defendants-respondents.
Appeal from an order of the Supreme Court, Erie County (Deborah A. Chimes, J.), enteredMay 6, 2011 in a personal injury action. The order granted the motion of defendants LarrySnyder, Pam Snyder and Leslie Snyder for summary judgment dismissing the complaint againstthem.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byVictoria J. Cannon (plaintiff) when she was hit in the face with a beer bottle thrown by defendantTina M. Giordano, an allegedly intoxicated 20 year old, at a bar. Several hours prior to theincident, Giordano attended a party hosted by defendants Larry Snyder, Pam Snyder and LeslieSnyder (Snyder defendants) at a restaurant in the same area. We reject plaintiffs' contention thatSupreme Court erred in granting the Snyder defendants' motion for summary judgmentdismissing the General Obligations Law § 11-100 cause of action against them. Inasmuchas plaintiffs do not challenge that part of the order granting the Snyder defendants' motion forsummary judgment dismissing the negligence cause of action against them, we conclude thatplaintiffs have abandoned any issues with respect thereto (see Ciesinski v Town ofAurora, 202 AD2d 984, 984 [1994]).
The record establishes that defendants Larry and Pam Snyder purchased two or three pitchersof beer for the party to celebrate Leslie Snyder's 21st birthday and that the beer was placed on atable where guests could help themselves. Giordano was the only person under the age of 21 whoattended the party. Larry Snyder testified at his deposition that he never observed Giordano at theparty. Although Pam and Leslie Snyder testified at their depositions that they knew Giordano waspresent at the party and was under the age of 21, neither of them observed Giordano drinkingbeer at any time during the party. Moreover, a waitress was assigned to the [*2]party and Pam Snyder testified that she believed that the waitresswould regulate access to the beer. Also, Leslie Snyder testified that she believed the restaurantwas responsible for checking identification of the guests. Giordano testified at her deposition thatshe helped herself to "a beer or two" during the party, and that she thereafter had several drinks inthe bar area of the same restaurant before proceeding to the bar where she threw the beer bottlethat injured plaintiff.
Based on the record before us, we conclude that the Snyder defendants were entitled tosummary judgment dismissing the General Obligations Law § 11-100 cause of actionagainst them. Contrary to plaintiffs' contention, the court applied the proper standard indetermining that the Snyder defendants did not unlawfully furnish alcohol to Giordano within themeaning of section 11-100 (1) by considering whether they were "part of a deliberate plan toprovide alcohol or played an indispensable role in a scheme to make alcohol available to"Giordano (see Rust v Reyer, 91 NY2d 355, 360-361 [1998]). Inasmuch as the evidencepresented by the Snyder defendants in support of the motion established that they never"deliberate[ly] plan[ned] to provide, supply or give alcohol to" Giordano (id. at 360), weconclude that they did not unlawfully furnish alcohol to her. We further conclude that the Snyderdefendants did not "unlawfully assist[ ] in procuring alcoholic beverages for" Giordano (§11-100 [1]). The record establishes that Leslie Snyder played no role in procuring beer and that,although Larry and Pam Snyder purchased beer for the party, they did not do so for Giordano.Moreover, given that the Snyder defendants were unaware that Giordano drank beer at the party,they did not "knowingly cause[ her] intoxication or impairment of ability" pursuant to GeneralObligations Law § 11-100 (1) (seeLombart v Chambery, 19 AD3d 1110, 1111 [2005]; Dodge v Victory Mkts., 199AD2d 917, 920-921 [1993]). Finally, plaintiffs failed to raise a triable issue of fact with respectto the section 11-100 (1) cause of action against the Snyder defendants (see generallyZuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present—Centra, J.P.,Fahey, Lindley, Sconiers and Martoche, JJ.