O'Neill v. Ithaca Coll., 2007 NY Slip Op 52506(U) (N.Y. Sup. Ct. 12/19/2007)
| Decision Date | 19 December 2007 |
| Docket Number | 2006-0791. |
| Parties | ELLIE GRACE O'NEILL, DON O'NEILL and SANDRA O'NEILL, Plaintiffs, v. ITHACA COLLEGE, Defendant. ITHACA COLLEGE, Third-Party Plaintiff, DUSTIN ADAMS, ETHAN CAPONE, SIMON FOKARD, MICHAEL GORDON, MICHAEL CONNELL, TALLMAN & DEMAREST ARCHITECTS, LLP, ROBERT B. TALLMAN, TETRA TECH ENGINEERS, ARCHITECTS & LANDSCAPE ARCHITECTS, P.C., Third-Party Defendants |
| Court | New York Supreme Court |
Ciano J. Lama, Esq., THE LAMA LAW FIRM, LLP, Utica, New York, Attorneys for Third Party Defendant, Tallman and Demarest.
Edward S. Leone, Esq., CHERUNDOLO, BOTTAR & LEONE, PC, Syracuse, New York, Attorneys for Plaintiffs O'Neil, AXA Tower II.
James G. Stevens, Jr., Esq., SUGARMAN LAW FIRM, LLP, Syracuse, New York, Attorneys for Third-Party Defendants Tetra Tech Engineers and Architects & Landscape Architects, P.C.
Thomas R. Smith, Esq., BOND, SCHOENECK & KING, PLLC, Syracuse, New York, Attorneys for Defendant/Third-Party Plaintiff Ithaca College.
Frank Bersani, Jr., Esq., Syracuse, New York, Attorney for Third-Party Defendant Dustin Adams.
Adam C. Ferrandino, Esq., FELDMAN, KIEFFER & HERMAN, LLP, Buffalo, New York, Attorneys for Third-Party Defendant Simon Folkard.
Donald J. Lambiase, Esq., MURPHY & LAMBIASE, Goshen, New York, Attorneys for Third-Party Defendant Michael O'Connell.
Edward M. Eustace, Esq., EUSTACE & MARQUEZ, White Plains, New York, Attorneys for Third-Party Defendant Michael Gordon.
Patricia Cummings, Esq., Leonard & Cummings, LLP, Binghamton, New York, Attorney for Third Party Defendant Ethan C. Capone.
WILLIAMSON, CLUNE & STEVENS, Robert J. Clune, Esq., Ithaca, NY, Attorney for Estate of Tallman.
In this premises liability action, Plaintiffs seek damages from Defendant Ithaca College for personal injuries sustained by Plaintiff Ellie Grace O'Neill (hereinafter referred to as Plaintiff) in a fall on Defendant's campus. Defendant's Answer raises affirmative defenses of comparative negligence on the part of Plaintiff and unnamed others. (O'Connell Motion Exh. B). Its Third-Party Complaint seeks contribution under CPLR Article 14 from, among others, Third-Party Defendants Michael O'Connell and Dustin Adams on theories of liability under General Obligations Law § 11-100 and common law negligence. O'Connell and Adams now move separately for summary judgment dismissing the Third-Party Complaint as against them. Defendant opposes the motion. Plaintiffs, Defendant, Third Party Defendant O'Connell, and Third Party Defendant Adams appeared by Counsel for oral argument on September 14, 2007.
Plaintiff was a 19-year-old sophomore at Ithaca College on October 22, 2004, when she was severely injured in a fall from a third-floor fire escape or balcony (hereinafter balcony). The balcony was located outside a student apartment in a residential building on Defendant's campus. In the primary action, Plaintiff and her parents allege that the balcony's inadequate railings constituted a dangerous condition that caused her fall.
At the time of her accident, Plaintiff was visiting the apartment to attend a surprise twenty-first birthday party for Third-Party Defendant Simon Folkard, one of five student roommates who shared the apartment. The other roommates, all of whom are Third-Party Defendants, were Adams, O'Connell, Ethan Capone, and Michael Gordon. Defendant's Third-Party Complaint seeks contribution from the roommates on the theory that Plaintiff's accident was caused, in whole or in part, by intoxication resulting from her alleged consumption of alcoholic beverages during the party. (O'Connell Motion Exh. C.)
In an affidavit supporting his summary judgment motion, Third Party Defendant O'Connell alleges that he did not have anything to do with planning the party, that he first learned about the party approximately a week before it was held, and that his only involvement in preparing or hosting the party was to go out with Folkard and other roommates in an attempt to keep Folkard away from the apartment while others made preparations for the party. O'Connell alleges that he did not purchase any alcohol for consumption at the party, contribute any funds for its purchase, or serve alcohol to anyone who attended, and that none of the alcohol that was allegedly served at the party belonged to him. He asserts that he did not invite any guests to the party or know who was being invited, that he was not aware that anyone under 21 had been invited or was present, and that he was not aware that anyone at the party was intoxicated or that any minors were drinking alcohol. He allegedly did not know Plaintiff before the accident, did not know she was at the party, did not know her age, did not witness her accident, and first learned that it had happened when one of the other roommates came back into the apartment from the balcony and told him that someone had fallen. (O'Connell Affidavit sworn to on August 23, 2007.) Defendant alleges that O'Connell's deposition testimony shows that he helped plan the party by assisting in keeping Folkard out of the apartment, that he knew there would be alcohol at the party and that it would be attended by people under the age of 21, including some of his roommates, and that during the party he did not attempt to ascertain the ages of the guests or to prevent people under the age of 21 from drinking. (O'Connell Motion Exh. K, pp. 24-25, 34-36.)
Third Party Defendant Adams was deposed on June 15, 2006 (Defendant's Exh. C) and again on February 8, 2007 (Adams Motion Exh. C.) He alleges that the party was planned by Folkard's sister Christina and possibly by some of Christina's roommates. He testified that before the party, he had discussions with Christina regarding her plans to decorate the apartment and provide food, but that he did not remember any discussions regarding alcohol. (Adams Motion Exh. C, p. 23-24.) A day or two before the party, Adams drove his roommate Michael Gordon to a liquor store where Gordon, who was over 21, purchased about a case of beer, a bottle of Jagermeister, and unspecified amounts of wine and rum. (Adams Motion Exh. C., pp. 27-30.) Adams did not enter the store and did not contribute any of his own funds to the purchase. (Defendant's Exh. C, p. 39.) When Adams was asked whether Gordon purchased the alcohol for the party, he responded, "Yes," (Defendant's Exh. C, p. 38-39), but he also testified that it was his understanding that Gordon purchased the alcohol for the general use of the five roommates and that the alcohol was not intended to be freely available at the party. (Adams Motion Exh. C. p. 33; Defendant's Exh. C, p. 48-49.) Before the party, the alcohol that Gordon purchased was stored in the apartment refrigerator, where Folkard and the other roommates had access to it. (Adams Motion Exh. C., pp. 29-30.) Adams testified that the alcohol Gordon purchased was not the only alcohol at the party, that some attendees brought their own alcohol, and that guests got their own drinks. (Defendant's Exh. C. p. 49-50.)
Adams had known Plaintiff for a month and a half or two months before the accident happened. He was two years ahead of her in school and had helped her with some of her course work. (Adams Motion Exh. C., pp. 23, 31.) During the party, Adams saw Plaintiff for about ten minutes and had a conversation with her that lasted a minute or two. (Defendant's Exh. C., p. 28). Adams saw Plaintiff drink a shot of the Jagermeister that Gordon had purchased, and at another time he saw her holding a cup, although he did not know what was in it. (Defendant's Exh. C, p. 50-51.) Adams testified that he was also drinking Jagermeister but that he did not pour Plaintiff's Jagermeister or serve alcohol to anyone at the party at any time. (Defendant's Exh. C. p. 49). Adams described Plaintiff as "perhaps a little tipsy" and somewhat more "outgoing and direct" than she normally was during the party, but he stated that she was normally an energetic and outgoing person and that she did not appear to him to be intoxicated. (Defendant's Exh. C, pp. 29-30; Adams Motion Exh. C., pp. 11-13). He did not witness Plaintiff's accident.
New York General Obligations Law § 11-100 provides as follows:
Any person who shall be injured in person, property, means of support or otherwise, by reason of the intoxication or impairment of ability of any person under the age of twenty-one years, whether resulting in his death or not, shall have a right of action to recover actual damages against any person who knowingly causes such intoxication or impairment of ability by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for such person with knowledge or reasonable cause to believe that such person was under the age of twenty-one years.
Defendant contends that material questions of fact exist as to whether the Third Party Defendants unlawfully furnished or assisted in procuring the alcoholic beverages that Plaintiff allegedly consumed at the party, thereby causing her to become intoxicated.1 Therefore, Defendant contends, if it is held liable to Plaintiff in the primary action, it will be "injured" within the meaning of § 11-100 and may seek contribution from them in proportion to their relative culpability.
Initially, the two Movants contend that contribution is not available to Defendant under § 11-100. They point out that the statute does not permit Plaintiff to maintain a cause of action in her own favor by reason of her own intoxication (Searley v. Wegman's Food Markets, 24 AD3d 1202 [4th Dep't 2005]; Sheehy v. Big Flats Community Day, 73 NY2d 629 [1989]) and that her infancy does not provide her with an exception. (Searley, supra; Livelli v. Teakettle Steak House, 212 AD2d 513 [2d Dep't 1995]). Movants contend that principles of comparative negligence will adequately...
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