| Aquino v Higgins |
| 2010 NY Slip Op 08386 [15 NY3d 903] |
| November 18, 2010 |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. |
| As corrected through Wednesday, December 22, 2010 |
| Michael Aquino, Appellant, v Michael Higgins, Defendant, and John Higgins et al., Respondents. |
Argued October 12, 2010; decided November 18, 2010
Aquino v Higgins, 68 AD3d 1650, reversed.
APPEARANCES OF COUNSEL
Brown Chiari LLP, Lancaster (Samuel J. Capizzi of counsel), for appellant.
Dennis J. Bischof, LLC, Williamsville (Dennis J. Bischof of counsel), 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 properly supervised their departure from the premises (compare Rudden v Bernstein, 61 AD3d [*2]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.
Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.
Order, insofar as appealed from, reversed, etc.