November 18, 2010
MICHAEL AQUINO, APPELLANT,
MICHAEL HIGGINS, DEFENDANT, JOHN HIGGINS ET AL., RESPONDENTS.
This memorandum is uncorrected and subject to revision before publication in the New York Reports.
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 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.
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.
© 1992-2010 VersusLaw Inc.