KINGSBURY v. WELCH (2003)

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 N.Y.2d 553, 559-560, 394 N.Y.S.2d 161, 362 N.E.2d 960;  Walsh v. Town of Cheektowaga, 237 A.D.2d 947, 654 N.Y.S.2d 912, lv. denied 90 N.Y.2d 889, 661 N.Y.S.2d 833, 684 N.E.2d 283).   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 A.D.2d at 947-948, 654 N.Y.S.2d 912).   The court therefore properly granted defendants' motion.

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

MEMORANDUM: