Stanley v. Kelly

• Decision Date: 04 August 2022
• Docket Number: 444,CA 21-00983
• Citation: 208 A.D.3d 993,173 N.Y.S.3d 750
• Parties: Eleanor STANLEY, Individually and as Administrator of the Estate of Michael Stanley, Deceased, Chloe Stanley, by and Through Her Parent and Natural Guardian, Eleanor Stanely, and Amanda Stanley, Plaintiffs-Appellants, v. Thomas KELLY, Jillian Kelly, Defendants-Respondents, and Boonville Hotel, Inc., Defendant-Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 993
173 N.Y.S.3d 750

Eleanor STANLEY, Individually and as Administrator of the Estate of Michael Stanley, Deceased, Chloe Stanley, by and Through Her Parent and Natural Guardian, Eleanor Stanely, and Amanda Stanley, Plaintiffs-Appellants,
v.
Thomas KELLY, Jillian Kelly, Defendants-Respondents,
and
Boonville Hotel, Inc., Defendant-Respondent-Appellant.

444
CA 21-00983

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: August 4, 2022

LAW OFFICE OF ROBERT F. DANZI, JERICHO (CHRISTINE COSCIA OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.

DETRAGLIA LAW OFFICE, UTICA (MICHELE E. DETRAGLIA OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT.

BURKE, SCOLAMIERO & HURD, LLP, ALBANY (STEVEN V. DEBRACCIO OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

208 A.D.3d 993

It is hereby ORDERED that said cross appeal is unanimously dismissed and the order is affirmed without costs.

Memorandum: Decedent died after he drove a snowmobile—lent

208 A.D.3d 994

to him by defendant Thomas Kelly (Kelly)—into the side of an overpass located adjacent to a trail on which he and his companions had been traveling. Shortly before the accident, decedent and his companions, including Kelly, spent several hours at defendant Boonville Hotel, Inc. (Hotel), where they purchased food and drinks. Decedent's autopsy revealed that his blood alcohol content (BAC) was .16%, and it was subsequently determined that his intoxication was a cause of the accident. Plaintiffs—decedent's wife and daughters—commenced this action asserting a cause of action for negligent entrustment against

173 N.Y.S.3d 752

Kelly and his wife, defendant Jillian Kelly (collectively, Kelly defendants), alleging that they knew or should have known about decedent's intoxication, which rendered him unfit to properly operate the snowmobile that Kelly lent him. Plaintiffs also asserted a cause of action against the Hotel for violation of the Dram Shop Act, alleging that the Hotel had sold alcoholic beverages to decedent despite his visible intoxication. In its verified answer, the Hotel asserted, inter alia, a cross claim against the Kelly defendants for indemnification and contribution. Plaintiffs appeal from that part of an order that granted defendants’ respective motions for summary judgment dismissing the complaint, and the Hotel cross-appeals from that part of the order that dismissed its cross claim for indemnification and contribution.

With respect to plaintiffs’ appeal, we note, initially, that plaintiffs have abandoned their claims against Kelly's wife, inasmuch as they do not challenge on appeal Supreme Court's dismissal of the negligent entrustment cause of action with respect to her (see Ciesinski v. Town of Aurora , 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ). We also note that because "an intoxicated person should not generally be permitted to...