Gabrielle v. Craft
| Decision Date | 15 May 1980 |
| Citation | 428 N.Y.S.2d 84,75 A.D.2d 939 |
| Parties | Orlando E. GABRIELLE, as Administrator of the Estate of Regina Gabrielle, Plaintiff, v. Gary CRAFT et al., Defendants, County of Schenectady, Respondent, and Appeal of Bruce KACZMAREK et al. |
| Court | New York Supreme Court — Appellate Division |
Lyons & Duncan, Albany (Condon A. Lyons, Albany, of counsel), for appellants.
Donohue, Bohl, Clayton & Komar, Albany (Howard D. Clayton, Jr., Albany, of counsel), for respondent.
Before MAHONEY, P. J., and GREENBLOTT, MAIN, MIKOLL and CASEY, JJ.
Appeal from an order of the Supreme Court at Special Term, entered April 11, 1979 in Schenectady County, which denied a motion by Bruce Kaczmarek and Paul Kaczmarek to dismiss the cross claim of Schenectady County.
On February 20, 1975, the appellant Bruce Kaczmarek, a student at the Scotia-Glenville High School, invited a number of his classmates to his parents' home for a party. Among the guests was plaintiff's intestate, Regina Gabrielle, who on the day of the party was 17 years and 10 months of age. At least some of those present, including Regina, consumed a quantity of alcoholic beverages. At about 11:30 P.M. the party broke up. Bruce and some of his guests entered his father's car, which Bruce backed from the driveway and headed west on Worden Road. After proceeding only a few feet and pulling to the southerly curb, Bruce stopped the car and entered a conversation with one of the guests, who, with others, was standing and visiting outside the Kaczmarek home. At this point in time the defendant, Gary Craft, who had no connection with the party, was operating his father's automobile and proceeding westerly on Worden Road. As he passed or was about to pass the Kaczmarek vehicle, he observed someone fall on the street directly in the path of his vehicle. His attempts to avoid contact were unsuccessful and Regina's body was found on the northerly side of the street some distance westerly of the Kaczmarek residence. Regina was rushed to Ellis Hospital where she died eight days later as the result of severe brain damage sustained as a result of the accident.
Thereafter, Regina's father, Orlando E. Gabrielle (plaintiff), commenced an action against appellants Bruce and his father, Paul Kaczmarek, pursuant to EPTL 5-4.1 and EPTL 11-3.2. The negligence alleged in that complaint dealt exclusively with the ownership, operation and management of the Kaczmarek vehicle. Separate actions were also instituted against Gary Craft and his father, the Town of Glenville and the County of Schenectady (county). Prior to the consolidation of these actions, the county interposed an answer containing cross claims against all other defendants, and subsequent to consolidation, it served a cross claim against the appellants which was separate and distinct from the one against Kaczmarek contained in its answer. It is this later and independent cross claim which is the subject of this appeal. This cross claim seeks contribution from the appellants Kaczmarek, not by reason of the manner in which their vehicle was operated, but on the theory that they caused, encouraged, and permitted the decedent, who was not experienced in the use of alcoholic beverages, to consume a quantity of same so that she became impaired, intoxicated, debilitated and unable to care for herself, and that the appellants knew her condition and failed to care for her and restrain her movement and permitted her to leave a place of safety for one of danger. The county contends that, if the plaintiff is awarded damages, the award will be due to the aforementioned conduct of the appellants who must then reimburse the county for any damages assessed against it.
The Kaczmareks moved to dismiss the cross claim or, in the alternative, for summary judgment, primarily contending that they owed no duty to the county and that there could be no recovery against them because the decedent was guilty of contributory negligence as a matter of law. Special Term declined to dismiss the cross claim and, relying heavily on Bartkowiak v. St. Adalbert's R.C. Church Soc. (40 A.D.2d 306, 340 N.Y.S.2d 137), concluded that a jury could conceivably find that the appellants were negligent in failing to control the conduct or movement of their guest and could find that, due to her age and inexperience with alcohol, decedent was not acting unreasonably by imbibing a small quantity of alcohol and, therefore, was not contributorily negligent.
It is well established that on a motion pursuant to CPLR 3211 (subd. (a), par. 7), the question presented is whether a cause of action has been stated, not whether the cause of...
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