Michael Aquino v. Michael Higgins
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 189
Michael Aquino,
Appellant,
v.
Michael Higgins,
Defendant,
John Higgins et al.,
Respondents.
Samuel J. Capizzi, for appellant.
Dennis J. Bischof, for respondents.
MEMORANDUM:
The order of the Appellate Division, insofar as
appealed from, should be reversed, with costs, and the fourth
cause of action against John and Heather Higgins reinstated.
There is an issue of fact as to whether defendants
provided adequate supervision for minor guests who became
intoxicated at their home and, in particular, whether defendants
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No. 189
properly supervised their departure from the premises (compare
Rudden v Bernstein, 61 AD3d 736, 738 [2d Dept 2009]).
Since the
basis of any liability on defendants' part, assuming proximate
cause, rests on the duty to supervise (see Appell v Mandel, 296
AD2d 514 [2d Dept 2002]), rather than their duty as landowners,
it is not dispositive that the injury occurred off premises.
As
a result, summary judgment should not have been granted in
defendants' favor and the cause of action for negligent
supervision should be reinstated.
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Order, insofar as appealed from, reversed, with costs, and the
fourth cause of action against defendants John and Heather
Higgins reinstated, in a memorandum. Chief Judge Lippman and
Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.
Decided November 18, 2010
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