Ehle v Howard

[*1] Ehle v Howard 2006 NY Slip Op 50606(U) [11 Misc 3d 1078(A)] Decided on April 7, 2006 Supreme Court, Onondaga County Centra, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 7, 2006
Supreme Court, Onondaga County

Benjamin P. Ehle, Plaintiff,

against

Kevin Howard, SHANNON M. COLVIN, and JANE ALEKSANDROWICZ, Defendants.



02-4564



M. Mark Grobosky, Esq.

Grobosky & Mccarthy, LLP

Attorney for Plaintiff

602 Vine Street

Liverpool, NY 13088

Sheila Finn Schwedes, Esq.

Law Offices Epstein & Donnelly

Attorneys for Defendant Shannon M. Colvin

110 Elwood Davis Road

North Syracuse, NY 13212-4304

Stewart L. Weisman, Esq.

Attorney for Defendant Jane Aleksandrowicz

8060 Shadow Rock

P.O. Box 598

Manlius, NY 13104

John V. Centra, J.

Defendant Jane Aleksandrowicz and her son, Brendan Miller, were residing with co-Defendant Shannon Colvin on the evening of June 27, 2001 through the morning of June 28, 2001. At that time, Aleksandrowicz and Colvin were both off the premises, working at St. Joseph's Hospital as nurses. Miller, unbeknownst to either Aleksandrowicz or Colvin, hosted a party at Colvin's residence. Plaintiff and co-Defendant Kevin Howard were both present. Howard allegedly beat and stabbed Plaintiff, causing numerous injuries.

Plaintiff has sued Aleksandrowicz on the theory that, as mother of Miller and a resident of the property, she was careless, reckless and negligent in allowing Miller to have a party at the property and she was careless, reckless and negligent in her supervision of the property. In addition, Plaintiff alleges that Aleksandrowicz was negligent in her failure to properly supervise Miller and/or to allow him to host the party, her failure to properly supervise the party, and her failure to establish and enforce proper and safe standards for the conduct of the party.

Aleksandrowicz seeks dismissal of this action on the grounds that she was not the owner of the house, she had no other interest in the house, she had no knowledge of the party, she did not give her permission or consent to her son to host a party, she was not at the party, and the alleged criminal acts of beating and stabbing that were perpetrated by Kevin Howard, not Aleksandrowicz's son, were a superseding event. Aleksandrowicz contends that the intervening criminal acts of a third-party supersede the claimed negligence.

Colvin has brought a cross-motion also seeking dismissal. Colvin maintains that she did not have any knowledge of the party at her home and did not give permission or consent to Miller to host a party there. She was not home during the party when the assault and battery was alleged to have taken place. There is no relationship between Miller and Colvin. There is no proof that Miller was acting as an agent of Colvin. Additionally, the intervening criminal acts of a third-party supersede the claimed negligence.

Plaintiff's response to these motions consists of an attorney's affirmation without any affidavit from Plaintiff, himself. This is patently insufficient. Maxson v. Robert Packer Hospital, 261 AD2d 907 (4th Dept. 1999).

Plaintiff's attorney argues that because Plaintiff is incarcerated, he was not able to obtain an affidavit from him. However, Plaintiff's attorney never asked this court for an extension of time to obtain that affidavit nor stated any reason that Plaintiff, although incarcerated, was unable to execute an affidavit.

Plaintiff, through his attorney, argues that there are questions of fact such as: (1) how old was Miller on June 28, 2002; (2) was there alcohol served at the party; (3) if so, where did it come from; (4) were the people consuming alcohol at the party of the legal age to drink; (5) how long had Aleksandrowicz and Miller resided at the property; (6) did they pay rent or provide services in lieu of rent to Colvin; (7) when did the party begin; (8) when did the party end; (9) when did Aleksandrowicz leave the property for work on June 28, 2002; (10) when did Aleksandrowicz return to the property from work on June 28, 2002; (11) what were the hours of work of Aleksandrowicz on June 28, 2002; (12) prior to June 28, 2002 had Miller, with or without Aleksandrowicz's permission, hosted parties for friends; and (13) if Miller did previously host parties for friends, was alcohol served at those parties? The court finds that the answers to these questions are not relevant to the issue at bar. Aleksandrowicz and Colvin have met their burden of proof in this case. They [*2]have demonstrated that the party took place without the knowledge or consent of either Aleksandrowicz or Colvin. Neither Aleksandrowicz nor Colvin can be liable when they were not present when the incident took place and were not even aware that there were people in Colvin's home. Dynas v. Nagowski, 307 AD2d 144 (4th Dept. 2003). Further, neither Aleksandrowicz nor Colvin is liable due to the superseding intentional criminal acts of Howard. See Kush v. City of Buffalo, 59 NY2d 26 (1983); Barth v. City of New York, 307 AD2d 943 (2nd Dept. 2003).

Defendants are to submit an order on notice.

JOHN V. CENTRA

Supreme Court Justice

Dated:April 7, 2006

Syracuse, New York