CANNON, VICTORIA J. v. GIORDANO, TINA M. , 941 N.Y.S.2d 420 ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
348
CA 11-01610
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
VICTORIA J. CANNON AND MICHAEL CANNON,
PLAINTIFFS-APPELLANTS,
V MEMORANDUM AND ORDER
TINA M. GIORDANO, ET AL., DEFENDANTS,
LARRY SNYDER, PAM SNYDER AND LESLIE SNYDER,
DEFENDANTS-RESPONDENTS.
LAW OFFICE OF J. MICHAEL HAYES, BUFFALO (J. MICHAEL HAYES OF COUNSEL),
FOR PLAINTIFFS-APPELLANTS.
RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (THOMAS P.
CUNNINGHAM OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Appeal from an order of the Supreme Court, Erie County (Deborah
A. Chimes, J.), entered May 6, 2011 in a personal injury action. The
order granted the motion of defendants Larry Snyder, Pam Snyder and
Leslie Snyder for summary judgment dismissing the complaint against
them.
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 by Victoria J. Cannon (plaintiff) when she was hit
in the face with a beer bottle thrown by defendant Tina M. Giordano,
an allegedly intoxicated 20 year old, at a bar. Several hours prior
to the incident, Giordano attended a party hosted by defendants Larry
Snyder, Pam Snyder and Leslie Snyder (Snyder defendants) at a
restaurant in the same area. We reject plaintiffs’ contention that
Supreme Court erred in granting the Snyder defendants’ motion for
summary judgment dismissing the General Obligations Law § 11-100 cause
of action against them. Inasmuch as plaintiffs do not challenge that
part of the order granting the Snyder defendants’ motion for summary
judgment dismissing the negligence cause of action against them, we
conclude that plaintiffs have abandoned any issues with respect
thereto (see Ciesinski v Town of Aurora, 202 AD2d 984, 984).
The record establishes that defendants Larry and Pam Snyder
purchased two or three pitchers of beer for the party to celebrate
Leslie Snyder’s 21st birthday and that the beer was placed on a table
where guests could help themselves. Giordano was the only person
under the age of 21 who attended the party. Larry Snyder testified at
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CA 11-01610
his deposition that he never observed Giordano at the party. Although
Pam and Leslie Snyder testified at their depositions that they knew
Giordano was present at the party and was under the age of 21, neither
of them observed Giordano drinking beer at any time during the party.
Moreover, a waitress was assigned to the party and Pam Snyder
testified that she believed that the waitress would regulate access to
the beer. Also, Leslie Snyder testified that she believed the
restaurant was responsible for checking identification of the guests.
Giordano testified at her deposition that she helped herself to “a
beer or two” during the party, and that she thereafter had several
drinks in the bar area of the same restaurant before proceeding to the
bar where she threw the beer bottle that injured plaintiff.
Based on the record before us, we conclude that the Snyder
defendants were entitled to summary judgment dismissing the General
Obligations Law § 11-100 cause of action against them. Contrary to
plaintiffs’ contention, the court applied the proper standard in
determining that the Snyder defendants did not unlawfully furnish
alcohol to Giordano within the meaning of section 11-100 (1) by
considering whether they “were part of a deliberate plan to provide
alcohol or played an indispensable role in a scheme to make alcohol
available to” Giordano (see Rust v Reyer, 91 NY2d 355, 360-361).
Inasmuch as the evidence presented 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), we conclude
that they did not unlawfully furnish alcohol to her. We further
conclude that the Snyder defendants 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 General Obligations Law § 11-100 (1) (see Lombart v
Chambery, 19 AD3d 1110, 1111; Dodge v Victory Mkts., 199 AD2d 917,
920-921). Finally, plaintiffs failed to raise a triable issue of fact
with respect to the section 11-100 (1) cause of action against the
Snyder defendants (see generally Zuckerman v City of New York, 49 NY2d
557, 562).
Entered: March 23, 2012 Frances E. Cafarell
Clerk of the Court