De Leo v. Bauman, 1556/14

• Decision Date: 10 June 2019
• Docket Number: 1556/14
• Citation: 64 Misc.3d 626,102 N.Y.S.3d 866
• Court: New York Supreme Court
• Parties: Anthony DE LEO, Executor of the Estate of Eileen De Leo and Anthony De Leo, Individually, Plaintiffs, v. Diane BAUMAN and Mirabella Restaurant and Bar, Defendants.

64 Misc.3d 626

102 N.Y.S.3d 866

Anthony DE LEO, Executor of the Estate of Eileen De Leo and Anthony De Leo, Individually, Plaintiffs,

v.Diane BAUMAN and Mirabella Restaurant and Bar, Defendants.

1556/14

Supreme Court, Nassau County, New York.

Decided on June 10, 2019

Plaintiff: Babchik & Young, LLP, By Carol Morokoff, Esq., 245 Main Street, Suite 330, White Plains, N.Y. 10601, 914-470-0001, Carol.morokoff@babchikyoung.com

Defendant: Bauman, Fishman & Tynan, Esqs., By John Fishman, Esq., 1757 Merrick Avenue, Suite #202, Merrick, N.Y. 11566, 516-379-9806, Legal@fishmantynan.com

Antonio I. Brandveen, J. Defendant Bauman moves for an order granting summary judgment in her favor.¹

Although the Court of Appeals and appellate courts have for the last thirty years "refused to recognize a common-law cause of action against providers of alcoholic beverages in favor of persons injured as a result of their own voluntary intoxication," ( Sheehy v. Big Flats Community Day, 73 N.Y.2d 629, 636-637, 543 N.Y.S.2d 18, 541 N.E.2d 18 [1989] ), the facts and circumstances presented here compels this Court to find that the defendant landowner/social host in this tragic wrongful death action had, as a landowner, a legal duty of care to the inebriated and drugged decedent, her long-time friend, which led to the 54-year old decedent drowning in the defendant's hot tub in Saugerties, NY

The following facts and contentions are gleaned from the motion papers, exhibits and pleadings:

According to the statement Bauman gave to a police officer, under penalty of perjury, at 6 a.m. on October 27, 2019, the decedent, Eileen De Leo, and defendant Bauman traveled together on October 26, 2012, from the Port Authority to Kingston, NY, as part of a planned weekend visit for Eileen, Bauman's "best friend" for over 25 years, to see Bauman's new home in the Town of Saugerties. After they arrived by taxi from Kingston, defendant Bauman took Eileen on a tour of the house, and then they went back to the village for an "early...big dinner" at co-defendant Mirabella Restaurant and Bar. Bauman claimed that the decedent had a Xanax prior to their dinner, had four beers with her dinner; when they returned home at 7 p.m., she poured a glass of wine for herself and "Eileen, [who] also took an Ambien." Defendant further stated that they then went into the hot tub, and "after about 30-40 minutes ...Eileen asked...for another glass of wine [emphasis supplied]" When defendant Bauman returned, Eileen had died, according to the autopsy and toxiciology report, from asphyxia due to drowning, and that the decedent's blood alcohol level was .25 at the time her blood was analyzed.

Defendant Bauman maintains that she owed no duty to her friend since Eileen became inebriated on her own accord while she was also under the influence of prescription drugs that included Xanax, an anti-anxiety medicine, and Ambien, a sedative.

The plaintiff, Anthony De Leo, individually and as the executor of the estate of Eileen De Leo, contends in opposition to defendant's motion that Bauman owed a duty of care to his wife. He argues that pursuant to CPLR 4519, commonly referred to a the Dead Man's statute, defendant Bauman's deposition testimony should not be considered admissible evidence in support of her summary judgment motion. The plaintiff, who was not present, avers that the decedent "was not a drinker," and that he was "shocked" that the defendant, who was aware of the decedent's cancer and medication protocol, "allowed Eileen to consume so much alcohol, ...[gave] her access to prescription drugs,... allow[ed] her to get into a hot tub while intoxicated,...and allowed her to behave out of character and against what she knew to be medically appropriate." Plaintiff's attorney maintains that defendant Bauman had prescription drugs in her home, which Bauman left open and unattended on a counter - "defendant allowed Eileen access to a bowl of narcotics, including Ambien," for which the decedent allegedly did not have a prescription. The plaintiff's attorney points out that defendant Bauman testified that she left the decedent alone in the hot tub for approximately seven to 10 minutes, during which time the decedent drowned. The plaintiff was "shocked" that the defendant called him first before calling the police.

" ‘A tort obligation is a duty imposed by law to avoid causing injury to others’ ( New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 316 [639 N.Y.S.2d 283, 662 N.E.2d 763] [1995] ).....[T]he term "duty" is best used to describe ‘the relation between individuals which imposes upon one a legal obligation for the benefit of the other' (Prosser & Keeton, Torts § 53 at 356 [5th ed 1984] )....’[O]nce a duty is found, the duty, in theory at least, always requires the same [general] standard of conduct, that of a reasonable person under the same or similar circumstances' (Prosser & Keeton, Torts § 37 [4] at 236 [5th ed]; see generally 1A NY PJI3d 2:10 at 219 [2015] )" ( Abrams v. Bute , 138 A.D.3d 179, 182-183, 27 N.Y.S.3d 58 [2d Dept. 2016] ). Thus, since a finding of negligence must be based upon a breach of that duty, the threshold legal question that the court is required to determine is whether the alleged tortfeasor owes a duty of care to the injured party ( Davis v. South Nassau Communities Hosp. , 26 N.Y.3d 563, 572, 26 N.Y.S.3d 231, 46 N.E.3d 614 [2015] ; Espinal v. Melville Snow Contrs. , 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002] ; Hamilton v. Beretta U.S.A. Corp. , 96 N.Y.2d 222, 232, 727 N.Y.S.2d 7, 750 N.E.2d 1055 [2001] ; Di Ponzio v. Riordan , 89 N.Y.2d 578, 583, 657 N.Y.S.2d 377, 679 N.E.2d 616 [1997] ). "In the absence of duty, there is no breach and without a breach there is no liability ( Kimbar v. Estis , 1 N.Y.2d 399, 405, 153 N.Y.S.2d 197, 135 N.E.2d 708 [1956] )" ( Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019 [1976] ).

" ‘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, 665 N.Y.S.2d 17, 687 N.E.2d 1300 [1997] ; see Palka v. Servicemaster Mgt. Servs. Corp. , 83 N.Y.2d 579, 586, 611 N.Y.S.2d 817, 634 N.E.2d 189 [1994] ). 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 v. Beretta U.S.A. Corp., supra at 233, 727 N.Y.S.2d 7, 750 N.E.2d 1055 ).

In this context, "a moral duty should... be distinguished from a legal duty. The former is defined by the limits of conscience; the latter by the limits of law. A person may have a moral duty to prevent injury to another, but no legal duty. While a court might impose a legal duty where none existed before (see, generally, 1A Warren's Negligence, § 3.13, subd [2], pp. 166-167), such an imposition must be exercised with extreme care, for legal duty imposes legal liability" ( Pulka v. Edelman , supra at 786, 390 N.Y.S.2d 393, 358 N.E.2d 1019 ).

The modern view of the duty of care that a landowner owes to individuals on his or her premises was adopted by the Court of Appeals in its landmark decision in Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868, the Court of Appeals in 1976 adopted the modern standard to be used in evaluating a common law negligence claim against a landowner: "A landowner must act as a reasonable [person] in maintaining his [or her] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" ( Basso v. Miller , 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976]. The landowner's "duty of care to maintain his or her property in a reasonably safe condition (see Gronski v. County of Monroe, 18 N.Y.3d 374, 379, 940 N.Y.S.2d 518, 963 N.E.2d 1219 [citation omitted] [2011] )....'is premised on the landowner's exercise of control over the property, as the person in possession and control of property is best able to identify and prevent any harm to others' ( Gronski v. County of Monroe, 18 N.Y.3d at 379, 940 N.Y.S.2d 518, 963 N.E.2d 1219, quoting Butler v. Rafferty, 100 N.Y.2d 265, 270, 762 N.Y.S.2d 567, 792 N.E.2d 1055 [2003] ). Indeed, ‘[i]t has been held uniformly that control is the test which measures generally the responsibility in tort of the owner of real property’ ( Ritto v. Goldberg, 27 N.Y.2d 887, 889, 317 N.Y.S.2d 361, 265 N.E.2d 772 [1970] )" ( Agbosasa v. City of New York, 168 A.D.3d 794, 796, 92 N.Y.S.3d 100 [2d Dept. 2019] ).

"New York courts have not imposed a common-law duty to protect a person whose injuries are results of his or her own voluntary intoxication, and have refused to recognize a common-law cause of action against providers of alcoholic beverages for injuries to such persons ( Sheehy v. Big Flats Community Day , 73 N.Y.2d 629, 636 [543 N.Y.S.2d 18, 541 N.E.2d 18] [1989] ; Livelli v. Teakettle Steak House, 212 A.D.2d 513 [1995] )" ( Butler v. NY City Transit Auth. , 3 A.D.3d 301, 301-302, 770 N.Y.S.2d 317 [1st Dept. 2004]. "An exception...has been recognized in cases where a property owner has failed to protect others on the premises, or in other areas within the property owner's control, from the misconduct of an intoxicated person, at least when the opportunity to supervise was present (see, D'Amico v. Christie, supra [71 N.Y.2d 76] at 85 [524 N.Y.S.2d 1, 518 N.E.2d 896 (1987) ] [and cases cited therein] )" ( Sheehy v. Big Flats Community Day, Inc., supra at 637, 543 N.Y.S.2d 18, 541 N.E.2d 18 [emphasis supplied]; see Martino v. Stolzman , 18 N.Y.3d 905, 908, 964, 941 N.Y.S.2d 28, 964 N.E.2d 399 [2012] ; Sheehy v. Big Flats Community Day , 73 N.Y.2d 629, 636, 543 N.Y.S.2d 18, 541 N.E.2d 18 [1989] ; Covelli v. Silver Fist, Ltd., 167...