Kingsbury v. Welch

Jun 13, 2003
Versions:306 A.D.2d 850
762 N.Y.S.2d 717
2003 N.Y. App. Div. LEXIS 6844

—Appeal from an order of Supreme Court, Livingston County (Cornelius, J.), entered June 7, 2002, which granted the motion of defendants Village of Avon, the Village of Avon Police Department, and Avon Police Officer Michael Miller seeking summary judgment dismissing plaintiffs’ remaining claim against them.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly granted the motion of the Village of Avon, the Village of Avon Police Department and Avon Police Officer Michael Miller (defendants) seeking summary judgment dismissing plaintiffs’ remaining claim against them (cf. Parvi v City of Kingston, 41 NY2d 553, 559-560 [1977]; Walsh v Town of Cheektowaga, 237 AD2d 947 [1997], lv denied 90 NY2d 889 [1997]). Plaintiffs commenced this action seeking to recover damages arising from the death of Joseph L. Kingsbury (decedent) from acute alcohol intoxication after he fell asleep in the garage of a residence in Avon. Prior to the death of decedent, Miller encountered him while investigating a party at that residence and, before leaving, warned the homeowner of the dangers associated with decedent’s intoxication. Plaintiffs contend that defendants are liable under general negligence principles because Miller left decedent there in a highly intoxicated condition. In moving for summary judgment, however, defendants established that Miller did not take charge of decedent. Indeed, they established that the homeowner assumed his care. Even assuming, arguendo, that plaintiffs raised an issue of fact whether Miller was aware of the helpless condition of decedent, we conclude that they failed to raise the requisite triable issue of fact whether Miller took charge of him (cf. Walsh, 237 AD2d at 947-948). The court therefore properly granted defendants’ motion. Present — Green, J.P., Wisner, Scudder, Kehoe and Burns, JJ.