SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

348 

CA 11-01610 

PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ. 

 

VICTORIA J. CANNON AND MICHAEL CANNON, 

PLAINTIFFS-APPELLANTS, 

V MEMORANDUM AND ORDER

TINA M. GIORDANO, ET AL., DEFENDANTS, 

LARRY SNYDER, PAM SNYDER AND LESLIE SNYDER, 

DEFENDANTS-RESPONDENTS. 

 

LAW OFFICE OF J. MICHAEL HAYES, BUFFALO (J. MICHAEL HAYES OF COUNSEL),

FOR PLAINTIFFS-APPELLANTS. 

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (THOMAS P.

CUNNINGHAM OF COUNSEL), FOR DEFENDANTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Erie County (Deborah

A. Chimes, J.), entered May 6, 2011 in a personal injury action. The

order granted the motion of defendants Larry Snyder, Pam Snyder and

Leslie Snyder for summary judgment dismissing the complaint against

them. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for

injuries sustained by Victoria J. Cannon (plaintiff) when she was hit

in the face with a beer bottle thrown by defendant Tina M. Giordano,

an allegedly intoxicated 20 year old, at a bar. Several hours prior

to the incident, Giordano attended a party hosted by defendants Larry

Snyder, Pam Snyder and Leslie Snyder (Snyder defendants) at a

restaurant in the same area. We reject plaintiffs’ contention that

Supreme Court erred in granting the Snyder defendants’ motion for

summary judgment dismissing the General Obligations Law § 11-100 cause

of action against them. Inasmuch as plaintiffs do not challenge that

part of the order granting the Snyder defendants’ motion for summary

judgment dismissing the negligence cause of action against them, we

conclude that plaintiffs have abandoned any issues with respect

thereto (see Ciesinski v Town of Aurora, 202 AD2d 984, 984). 

The record establishes that defendants Larry and Pam Snyder

purchased two or three pitchers of beer for the party to celebrate

Leslie Snyder’s 21st birthday and that the beer was placed on a table

where guests could help themselves. Giordano was the only person

under the age of 21 who attended the party. Larry Snyder testified at
-2- 348 

CA 11-01610 

his deposition that he never observed Giordano at the party. Although

Pam and Leslie Snyder testified at their depositions that they knew

Giordano was present at the party and was under the age of 21, neither

of them observed Giordano drinking beer at any time during the party. 

Moreover, a waitress was assigned to the party and Pam Snyder

testified that she believed that the waitress would regulate access to

the beer. Also, Leslie Snyder testified that she believed the

restaurant was responsible for checking identification of the guests. 

Giordano testified at her deposition that she helped herself to “a

beer or two” during the party, and that she thereafter had several

drinks in the bar area of the same restaurant before proceeding to the

bar where she threw the beer bottle that injured plaintiff.

Based on the record before us, we conclude that the Snyder

defendants were entitled to summary judgment dismissing the General

Obligations Law § 11-100 cause of action against them. Contrary to

plaintiffs’ contention, the court applied the proper standard in

determining that the Snyder defendants did not unlawfully furnish

alcohol to Giordano within the meaning of section 11-100 (1) by

considering whether they “were part of a deliberate plan to provide

alcohol or played an indispensable role in a scheme to make alcohol

available to” Giordano (see Rust v Reyer, 91 NY2d 355, 360-361). 

Inasmuch as the evidence presented by the Snyder defendants in support

of the motion established that they never “deliberate[ly] plan[ned] to

provide, supply or give alcohol to” Giordano (id. at 360), we conclude

that they did not unlawfully furnish alcohol to her. We further

conclude that the Snyder defendants did not “unlawfully assist[ ] in

procuring alcoholic beverages for” Giordano (§ 11-100 [1]). The

record establishes that Leslie Snyder played no role in procuring beer

and that, although Larry and Pam Snyder purchased beer for the party,

they did not do so for Giordano. Moreover, given that the Snyder

defendants were unaware that Giordano drank beer at the party, they

did not “knowingly cause[ her] intoxication or impairment of ability”

pursuant to General Obligations Law § 11-100 (1) (see Lombart v

Chambery, 19 AD3d 1110, 1111; Dodge v Victory Mkts., 199 AD2d 917,

920-921). Finally, plaintiffs failed to raise a triable issue of fact

with respect to the section 11-100 (1) cause of action against the

Snyder defendants (see generally Zuckerman v City of New York, 49 NY2d

557, 562).

Entered: March 23, 2012 Frances E. Cafarell

Clerk of the Court