Martino v. Stolzman

[1765] Appeals from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered March 18, 2009 in personal injury actions. The order denied the motion of defendants Michael Oliver and Susan Oliver seeking, inter alia, dismissal of the claim in action No. 1 and the cause of action against them in action No. 2 asserting a violation of General Obligations Law § 11-101. It is hereby ordered that the order so appealed from is modified on the law by granting the motion in part and dismissing the claim in action No. 1 and the cause of action against defendants Michael Oliver and Susan Oliver in action No. 2 asserting the violation of General Obligations Law § 11-101 and as modified the order is affirmed without costs. Memorandum: Action No. 1 was commenced by plaintiff Jennifer D. Martino, who is also a defendant in action No. 2, and action No. 2 was commenced by plaintiff Judith A. Rost. The plaintiff in each action seeks damages for injuries sustained as the result of an automobile accident that occurred shortly after midnight on January 1, 2007. Michael A. Stolzman, a defendant in each action, was leaving a party hosted by defendants Michael Oliver and Susan Oliver, also defendants in each action. It is undisputed that Stolzman backed his automobile, in which Rost was a passenger, out of the Olivers’ driveway and into the path of an oncoming automobile operated by Martino and owned by Gina L. Avino, a defendant only in action No. 2. We conclude that Supreme Court erred in denying those parts of the Olivers’ motion seeking dismissal of the claim in action No. 1 and the cause of action against the Olivers in action No. 2 asserting a violation of General Obligations Law § 11-101 for failure to state a cause of action (see CPLR 3211 [a] [7]). We therefore modify the order accordingly. In determining a motion under CPLR 3211 (a) (7), “a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint . . . and the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one . . . Affidavits and other evidentiary material may also be considered to establish conclusively that plaintiff has no cause of action . . . Any facts [1766] in the complaint and submissions in opposition to the motion to dismiss are accepted as true, and the benefit of every possible favorable inference is afforded to the plaintiff’ (Gibraltar Steel Corp. v Gibraltar Metal Processing, 19 AD3d 1141, 1142 [2005] [internal quotation marks omitted]). General Obligations Law § 11-101 requires as a predicate for liability the commercial sale of alcohol for profit (see D’Amico v Christie, 71 NY2d 76, 84 [1987]) and, in applying the appropriate standard of review with respect to the Olivers’ motion, we conclude that the Olivers established as a matter of law that they did not sell alcohol at the party hosted by them and thus had no expectation of pecuniary gain (see generally id.; Casselberry v Dominick, 143 AD2d 528, 529 [1988], lv denied 73 NY2d 706 [1989]). We further conclude, however, that the court properly denied those parts of the Olivers’ motion seeking summary judgment dismissing the claim in action No. 1 and the cause of action in action No. 2 asserting that the Olivers were negligent. “[I]t is fundamental that a duty of reasonable care owed by the tortfeasor ... is elemental to any recovery in negligence . . . , and that foreseeability of injury does not determine the existence of duty. Whether a duty of care exists is a question of law to be determined by the courts, which have the responsibility, in fixing the orbit of duty, of limiting the legal consequences of wrongs to a controllable degree” (Badou v New Jersey Tr. Rail Operations, 221 AD2d 303, 304 [1995] [internal quotation marks and citation omitted]; see Clementoni v Consolidated Rail Corp., 30 AD3d 986, 987 [2006], affd 8 NY3d 963 [2007]). The Olivers correctly concede that they had a common-law duty as social hosts to control and supervise intoxicated guests on their property or in an area under their control (see D’Amico, 71 NY2d at 85; Aquino v Higgins, 68 AD3d 1650, 1651 [2009]), but they contend that they had no duty to prevent Stolzman from leaving their property prior to the accident because they were unaware that he was intoxicated. Nevertheless, the record establishes that Stolzman had a blood alcohol content of .14% following the accident, which is nearly twice the legal limit (see Vehicle and Traffic Law § 1192 [2]). We thus conclude on the record before us that there is an issue of fact whether the Olivers knew or should have known that Stolzman left the party in a dangerous state of intoxication. We also reject the contentions of the Olivers that the allegedly unsafe condition giving rise to the accident was not on property owned or maintained by them (cf. Haymon v Pettit, 9 NY3d 324, 328 [2007], rearg denied 10 NY3d 745 [2008]; Galindo v Town of Clarkstown, 2 NY3d 633, 636-637 [2004]), and that they had no duty to direct traffic from [1767] their driveway, from which the view of oncoming traffic was obstructed (cf. Lasek v Miller, 306 AD2d 835 [2003]). The Olivers both had an opportunity to control or at least to guide Stolzman as he exited their driveway in his automobile and acknowledged that sightlines near the end of their driveway were limited at the time of the accident. Indeed, they acknowledged that they had in the past guided visitors through a dangerous portion of their driveway. Finally, we conclude that the remaining contention of the Olivers is without merit. All concur except Smith and Peradotto, JJ., who dissent in part and vote to reverse in accordance with the following memorandum.