Kenny v. Hellerman

Summary

The Appellate Division, Second Department, reversed an order denying Eric and Leslie Gulkis summary judgment on Thomas Kenny's claim under General Obligations Law § 11-100. The court held that the defendants established that Matthew Hellerman was not intoxicated when the alleged assault occurred, and Kenny failed to raise a triable issue of fact. The court therefore dismissed the § 11-100 cause of action against the Gulkis defendants.

Holdings

1. Liability under General Obligations Law § 11-100 requires proof that the provider knowingly caused intoxication by furnishing alcohol to, or assisting in procuring alcohol for, a person known or reasonably believed to be underage; because the evidence established that Hellerman was not intoxicated at the relevant time, the Gulkis defendants were entitled to summary judgment.
2. Kenny failed to raise a triable issue of fact because conflicting evidence concerning whether Hellerman consumed alcohol did not constitute evidence that he was intoxicated.

Questions Presented

1. Whether the Gulkis defendants were entitled to summary judgment dismissing Kenny's General Obligations Law § 11-100 claim.
2. Whether the evidence raised a triable issue of fact concerning Hellerman's intoxication at the time of the alleged assault.

Disposition

reversed