Rasmussen v Villatore
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Rasmussen v Villatore 2012 NY Slip Op 30450(U) February 9, 2012 Sup Ct, Nassau County Docket Number: 6081/10 Judge: Roy S. Mahon Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SC SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. ROY S. MAHON Justice TRIAUIAS PART 5 TIMOTHY R. RASMUSSEN, INDEX NO. 6081/10 Plalntlffs), - against ARTHUR VILLATORE, ROBERT WALKER and MOTION SEQUENCE NO. MOTION SUBMISSION DATE: December 1, 2011 Defendant(s ). The following papers read on this motion: Notice of Motion Affrmation In Opposition Reply Affrmation Upon the foregoing papers, the motion by the defendants Robert Walker and Rose Walker for an 3212 which grants summary judgment to the moving defendants on the issue of liabilty, is determined as hereinafter provided: Order pursuant to CPLR This personal injury action arises out of an incident that occurred on August 15 , 2009 at approximately 10:30 p. m. in the rear yard of the premises located at 2460 Mermaid Avenue, Wantagh, NY. The plaintiff who was 19 at the time of the alleged incident contends that at that time he was invited to a block party and gathering by the Walker defendants ' son Pat. Subsequent to arrival, the plaintiff contends ' back yard and that while in the back that there was alcohol present and available in the Walker defendants The yard the plaintiff had lighter fluid sprayed on his shirt on his back by the defendant Arthur Vilatore. . The back yard had a fire pit in it which had plaintiff described the defendant Arthur Vilatore as " intoxicated" a fire in it which caused the plaintiffs shirt to ignite resulting in physical injuries. The rule in motions for summary judgment has been succinctly re-stated by the Appellate Division, AD2d Second Dept., in Stewart Title Insurance Company, Inc. v. Equitable Land Services, Inc., 207 880, 616 NYS2d 650, 651 (Second Dept., 1994): It is well established that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering suffcient evidence to demonstrate the absence of any material issues of fact [* 2] (Winegrad v. New York Univ. Med. Center 64 N. Y. 2d 851 , 853 , 487 N. Y. 316, 476 N. 2d 642; Zuckerman v. City of New York 49 N. 2d 557 562 427 N. 2d 595, 404 N. E.2d 718). Of course , summary judgment is a drastic remedy and should not be granted where there is any doubt as to the (State Bank of Albany v. McAulife 97 AD. 2d 607 467 N. 2d 944), but once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to existence of a triable issue produce evidentiary proof in admissible form suffcient to establish material (Alvarez v. Prospect Hosp. , 68 2d 320, 324 508 N. 2d 923, 501 N. 2d572; Zuckerman v. City of New York, supra, 49 N. 2d at 562 427 N. 2d 595 , 404 N. 2d 718). issues of fact which require a trial of the action The plaintiff at the plaintiffs January 20, 2011 deposition set forth: Other than tellng you there would be some drinking, did Pat say anything Q. else relating to alcohol when he invited you to the party? No. When he indicated there would be some drinking, you understood that to mean alcohol would be at the party? a. Yeah. a. Did Pat indicate to you at any point when he invite you to the party who would be providing the alcohol? Yea. His parents. a. What did he say? A He said his parents , like , bought the beer. Q. Did he indicate to you that you would be permitted to drink that beer? Yes. a. What did he say? A He said that, like , everyone s allowed to drink. a. Did he indicate to you when you were discussing the party what type of beer had been purchased? No. a. Did he indicate to you whether anything other than beer had been purchased for that party? No. a. Did he ask you to bring anything to the part? No. a. There were other people that you didn t know? Yeah. a. Was Arthur Vilatore present? Yes. Q. Who is Arthur Vilatore? A He was a friend of mine. a. How did Arthur come to be at that party? Mr. Stock: If you know. Q. If you know. I don t know. a. Did Pat invite him? I don t know. [* 3] Q. To your knowledge, was Pat friends with Arthur Vilatore? A. Yeah. a. How old is Arthur Vilatore at the time of this accident? A. I don t remember. Q. Under 21? A. Yeah. a. What time did Arthur arrive? A. I think around seven. Q. When he arrived, he went right to the Walker home. A. Q. A. Q. Yeah. Do you know what he had been doing earfier that day? No. Do you know if he had been hanging out at one of the other neighbor houses during the day? A. I don t know. bit. Q. When he arrived at 7 p. , how would you describe his condition? - - (indicating). Like, it' s all right. Q. When he arrived at 7 p. , did he appear intoxicated to you? A. Like A. A little a. Did he indicate to you that he had been drinking? A. Yeah. Q. A. a. A. Did he No. Did he tell you where he had been drinking? tell you what he had been drinking? No. Q. What was it about him that made him seen intoxicated to you when he arrived? A. He slurred his words a little bit. a. Did he arrive with anyone else? A. No. Q. Was he carrying and alcohol with him when he arrived? A. I don t remember. Q. To your knowledge, had Arthur consumed any type of narcotic medication or - - sorry, narcotic drugs or marijuana prior to his arrival at the party? A. I don t know. . a. Other than slurring his words , did he do anything else that made him seem intoxicated to you? A. No. a. Was he capable of walking? A. Yeah. a. Was he stumbling at all? A. Little bit. Every once in a while. MR. STOCK: This is when he arrived at the party? THE WITNESS: Yeah. a. Was he acting sily at all when he arrived? A. Little bit. a. What type of things was he doing? A. He just kept joking around a lot. a. Did the Walkers , Robert and Rose Walker , know that Arthur was present? A. Yes. [* 4] Q. Did you see them interact at all? A. Yeah. Q. What did you observe? A. Um, like, he just said hi to them and that' s it. Q. Did Rose and Robert Walker consume any alcohol, to your knowledge? A. I think so. Q. Did you see them doing that? A. No. a. Did Rose and Robert Walker interact with Arthur when he first arrived, or was that something that occurred later on? A. When he first arrived. a. Did you see them interact at any other point that evening? A. No. 24- 25; 42- see deposition transcript of Timothy R. Rasmussen at pgs In examining the issue of the providing of alcohol to underage individuals, the Court in 91 NY2d 355, 670 NYS2d 822 stated: Underage drinking is a significant societal problem that has generated (see, e. g., French, Kaput and Wildman, Special Project: widespread concern 70 Cornell Social Host Liability for the Negligent Acts of Intoxicated Guests, L Rev 1058(1985); Comment, Killer Party; Proposing Civil Liability for Social 245, 257-258(1996) 30 J Marshall L Rev Hosts who Serve Alcohol to Minors, ("Kiler Party 1. All 50 States have et minimum drinking ages, a measure which has to some extent prevented minors from themselves purchasing alcohol at bars and liquor stores. Those same laws, however , have proven far less effective in stopping minors from obtaining alcohol in a social setting, where it is provided to them by individuals who have little, if any, financial (see, e. , Killer Party, op. cit., at 260). disincentive for doing so States have responded to this circumvention of their minimum age laws in a variety of ways. Some have by statute imposed civil liabilty, criminal liabilty or both on gratuitous providers of alcohol. In other States, courts have (see generally, Annotation recognized a common- law duty of the provider Social Host's Liabiliy For Injuries Incun-d By Third Parties As A Result Of Intoxicated Guest' s Negligence, former approach: in addition 62 to ALR4th 16). New York had taken the to furnish alcoholic making it a crime in 1983 the (Penal Law 9260. 20(2)), 100 , which provides: Legislature enacted General Obligations Law ~11beverages to a minor in most cases Any person who shall be injured in person, property, means of support or otherwise, by reason of the intoxication or impairment of abilty of any person under the age of twenty-one years, whether resulting in his death or not, shall have a right of action to recover actual damages against any person who knowingly causes such intoxication or impairment of abilty by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for such person with knowledge or reasonable cause to believe that such person was under the age of twenty-one years (General Obligations Law 911- 100(1) (emphasis supplied)). -4- Rustv Reyer , " [* 5] Conceding that Reyer herself never actually served alcohol to any part guest , plaintiff nonetheless contends that Reyer's actions constituted furnishing " under the statute. Neither the relevant statutes (including related enactments General Obligations Law ~11- 101 and Alcoholic Beverage Control Law ~65) nor our prior cases define the term "furnishing , which is ordinarily understood to mean "to provide in any way: , to " supply" or " to give (see. e. , Black's Law Dictionary 675 Unabridged Dictionary 743(2d ed 1983); , 25). NY2d (6th ed 1990); Webster's Deluxe accord, Ball v Allstate Ins. Co. , 81 Here, Reyer allegedly gave permission for the alcohol at the party she was planning, provided storage for the kegs of beer both before and after the party, negotiated a share of the proceeds from cup sales for herself and at least attempted to arrange for her friends to drink the beer without charge. Her request for a portion of the proceeds from cup sales underscores here complete complicity in the fraternity s plans to furnish beer. As stated plaintiffs affdavit, Reyer " chose to participate in a scheme to furnish alcohol to underage individuals in return for a payment of money. " Moreover Reyer's advance permission , , without the beer could not have been served as it ultimately was. Indeed , many of the 150 minors present may well not have come to the party in the first instance had they not known that alcohol would be available. We conclude that if proven at trial, these facts cold bring Reyer's acts within the meaning of "furnishing " as used in the statute. Reyer's role could well be viewed as part of a deliberate plan to provide, supply or give alcohol to an underage person. In reaching this conclusion we are mindful that a statute in derogation of the (see Sherman v Robinson 80 NY2d 483, 487; D'Amico v Christie 71 NY2d , 83). We are mindful as well that our prime directive , in matters of statutory interpretation, is to give effect to common law must be strictly construed (see the intention of the Legislature 68 NY2d interpret "furnishing " as Reyer suggests - in effect limiting it to those who has the alcohol to the minorgives the term an overly narrow reach that undermines the clear legislative goal. 446, 451; People v Ryan , Feres v City of New Rochelle, 274 NY 149, 152). To The purpose of General Obligations Law ~11- 100 is to employ civil penalties as a deterrent against underage drinking (Sheehy v Big Flats Community 629, 636). As the bil' s cosponsor noted (t)his legislation seeks to protect minors from those persons uncaring enough to provide Day, 73 NY2d intoxicating beverages to minors in an indiscriminate manner and by so doing, to endanger the life and safety of the minor as well as of the general public (Letter of Assemblymember John F. Duane, Bill Jacket , L 1983, ch 641). In the words of Senator William T. Smith , also a cosponsor of the statute: Over the years, numerous court cases have dealt extensively with the question of common law liabilty on the part of those who knowingly furnish alcoholic beverages to under-age persons at graduation parties, church ', .............. ); ........... [* 6] socials , wedding receptions , offce parties , and college campuses. Under-age persons consuming excess alcohol at those social events unquestionably have the same propensity to do harm to the traveling public as those who have been served alcohol pursuant to a sale " (1983 NY Legis Ann, at 281). The facts alleged demonstrate that Reyer was more than an unknowing bystander or an innocent dupe whose premises were used by other minors (cf., Dodge v Victory seeking to drink Misciagna, 183 Mkts. 199 AD2d 151). Similarly, she was more AD2d 917; Reickert v than a passive participant who merely knew of the underage drinking and did nothing else to encourage it (cf. , Lane v Barker, 241 AD2d 739; MacGilvray v Denino, 149 AD2d 571; see also, Pelinsky v Rockensies, 209 AD2d 392). Reyer played an indispensible role in the scheme to make the alcohol available to the underage party guests. Reading the statute to foreclose responsibilty in these circumstances would allow unintended circumvention of the legislation and negate its deterrent purpose (see, 1983 NY Legis Ann, at 281-282lthe "time has come for every individual to accept responsibilty for an activity which most people partake in, consumption of alcoholic beverages - the responsibilty as a consumer, and as a furnisher, as well" see also, Killer Party, op. cit. , at 249-250). Rust v Reyer, supra at 358-361 Notwithstanding the Walker defendants ' denial of the presence of alcohol on their premises , the plaintiff has established an issue of fact as to whether alcohol was provided to the individuals at the gathering in issue; whether the Walker defendants knew of the condition of the defendant Arthur Vilatore and what role if any alcohol played in the injuries received by the plaintiff. As such , the application by the Walker defendants for an Order pursuant to CPLR ~3212 which grants summary judgment to the moving defendants on the issue of liabilty, is denied. SO ORDERED. DATED /i /PI -G.. ENTERED FEB 15 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE
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