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Alves v. Santos

Supreme Court, Westchester County

February 28, 2017

Salete Martins Alves, as Executrix of the Estate of BELARMINO C. ALVES a/k/a BELARMINO DOCIMO ALVES, Plaintiff,
Valdemiro Santos and REGINA SANTOS, Defendants.

          Miller Eisenman & Kanuck, LLP Attorney for Plaintiff Via NYSCEF

          Lester, Schwab Katz & Dwyer, LLP Attorneys for Defendants Via NYSCEF

          LAWRENCE H. ECKER, J.

         The following papers numbered 1 through 11 were read on the motion of Valdemiro Santos and Regina Santos ("defendants"), made pursuant to CPLR 3211(a)(7), to dismiss the complaint, filed by Salete Martin Alves ("plaintiff"):


         Notice of Motion, Affirmation, Exhibits A-B, 1 - 4

         Affirmation in Opposition, Affidavit, Exhibits A-C, 5 - 10

         Memorandum of Law

         Affirmation in Reply 11

         Upon the foregoing papers, the court determines as follows:

         In this action for personal injury and wrongful death, the essential facts of this tragic drowning accident are not in dispute. On May 25, 2014, plaintiff, her husband, Belarmino C. Alves ("decedent") and their two teenage sons, ***** and *****, went to visit defendants, their longtime friends, for a Memorial Day weekend barbeque at defendants' home in Pound Ridge, New York. The Alves family arrived at approximately 1:00 p.m. and shortly afterwards, decedent and Mr. Santos began consuming alcoholic beverages. The two men continued drinking throughout the day and evening. At approximately 11:00 p.m. they decided to go into the backyard swimming pool, despite the fact they were both highly intoxicated. At that hour, plaintiff and Ms. Santos were inside the house and had not been drinking alcohol. ***** was outside with his father and Mr. Santos. When he saw his father jump into the pool with his clothes on, he went inside and alerted his mother and Ms. Santos who walked out onto a balcony that overlooked the pool. Plaintiff observed her husband standing in the pool "fully clothed, extremely loud and acting inappropriately." [Pltf., Alves, Aff. ¶ 11]. Mr. Santos was in the heated spa. [1] The two women then walked back into the house where they sat and drank tea. [Pltf., Alves, Aff. ¶ 14]. Approximately ten minutes later, when they walked out onto the balcony to check on their husbands, plaintiff observed her husband on the bottom of the pool. Both sons, ***** and *****, jumped into the pool and pulled out their father. [Pltf., Alves, Aff. ¶ 15]. ***** and Ms. Santos performed CPR until the paramedics arrived, but it was too late. Decedent remained in a coma and died the following day. The cause of death was asphyxia due to drowning. According to the autopsy report, decedent had alcohol and several prescribed medications present in his body. [Pltf., Alves, Aff. ¶ 16, Pltf. Ex. C].

         Plaintiff brings this action as administratrix of her late husband's estate. The distributees are plaintiff and her two infant children. Plaintiff's theory of liability is that defendants, as the property owners, owed a duty of care to provide reasonable supervision to their guests, including decedent, and acted with negligence, recklessness, and carelessness by allowing him in his highly intoxicated state to use the swimming pool that night, such that they are responsible for decedent's death by drowning. The complaint also alleges defendants breached their duty to maintain the subject "premises", specifically the outdoor, in-ground swimming pool, in a safe and proper condition, free and clear of any hazardous conditions, and that by inviting decedent to use the swimming pool despite his intoxicated condition, defendants were aware of and failed to warn decedent of the "dangerous condition" of the swimming pool, failed to equip the pool with life lines, life preservers or other rescue equipment, and failed to exercise due care and diligence by not restraining decedent from using the pool after they knew he had been drinking for 10 hours and was highly intoxicated. Further, Mr. Santos, due to his own intoxication, was incapable of providing supervision to decedent, and Ms. Santos failed to take some action to prevent decedent, or Mr. Santos, from allowing decedent to enter the swimming pool as was witnessed by plaintiff, his widow, who stood side by side with Ms. Santos while this was taking place. [2] In her affidavit, plaintiff stated, "Mrs. Santos stated that she felt 'weird' leaving them in the pool because they were 'way too drunk.' Mrs. Santos then said, 'I don't believe it is safe for them to be in the pool.'" [Pltf., Alves, Aff. ¶ 13].

         Defendants have moved to dismiss the complaint pursuant to CPLR 3211(a)(7). On a motion to dismiss pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Rodriguez v Daily News, L.P., 142 A.D.3d 1062');">142 A.D.3d 1062 [2d Dept 2016]. That is, such a motion to dismiss should be granted only where, even viewing the allegations as true, the plaintiff cannot establish a cause of action . Sokoloff v Harriman Estates Dev. Corp., 96 N.Y.2d 409');">96 N.Y.2d 409 [2001]; Leon v Martinez, 84 N.Y.2d 83, 87 [1994]; Anderson v Armentano, 139 A.D.3d 769');">139 A.D.3d 769 [2d Dept 2016]. In undertaking this task, the court has the complaint (verified by plaintiff's attorney), plaintiff's affidavit, the police incident report and the autopsy report, all as submitted in opposition to the motion.

         "The threshold question in any negligence action is whether defendant owes a legally recognized duty of care to the plaintiff." Hamilton v Beretta U.S.A. Corp., 96 N.Y.2d 222, 232 [2001]. "The question of whether a member or group of society owes a duty of care to reasonably avoid injury to another is one of law for the courts." Purdy v Public Adm'r of County of Westchester 72 N.Y.2d 1, 8 [1988], rearg denied72 N.Y.2d 953');">72 N.Y.2d 953 [1988]. "Courts resolve legal duty questions by resort to common concepts of morality, logic and consideration of the social consequences of imposing the duty." Tenuto v Lederle Labs., Div. of Am. Cyanamid Co. 90 N.Y.2d 606, 612 [1997]. "When conducting this analysis, 'despite often sympathetic facts in a particular case before them, courts must be mindful of the precedential, and consequential, future effects of their rulings, and 'limit the legal consequences of wrongs to a controllable degree.'" Lauer v City of New York, quoting Tobin v Grossman, 24 N.Y.2d 609, 619 [1969]. "A critical consideration in determining whether a duty exists is whether the defendant's relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm." Hamilton, supra. But the courts have repeatedly emphasized that the "foreseeability of harm does not define duty", 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 N.Y.2d 280, 289 [2001]; rather it "merely determines the scope of the duty once it is determined to exist, " Hamilton, supra at 232. Consequently, "absent a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm." 532 Madison Ave. Gourmet Foods v Finlandia Ctr., supra at 289. The court is also ...

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