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.
Eisenman & Kanuck, LLP Attorney for Plaintiff Via NYSCEF
Lester, Schwab Katz & Dwyer, LLP Attorneys for Defendants
LAWRENCE H. ECKER, J.
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
of Motion, Affirmation, Exhibits A-B, 1 - 4
in Opposition, Affidavit, Exhibits A-C, 5 - 10
in Reply 11
the foregoing papers, the court determines as follows:
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.  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].
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.  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].
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 ; Leon v
Martinez, 84 N.Y.2d 83, 87 ; 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.
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 . "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 , rearg denied72 N.Y.2d 953');">72 N.Y.2d 953
. "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 . "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 . "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 ; 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 ...