
    [938 NE2d 1006, 912 NYS2d 571]
    Michael Aquino, Appellant, v Michael Higgins, Defendant, and John Higgins et al., Respondents.
    Argued October 12, 2010;
    decided November 18, 2010
    
      APPEARANCES OF COUNSEL
    
      Brown Chiari LLP, Lancaster (Samuel J. Capizzi of counsel), for appellant.
    
      Dennis J. Bischof, LLC, Williamsville (Dennis J. Bischof of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the fourth cause of action against John and Heather Higgins reinstated.

There is an issue of fact as to whether defendants provided adequate supervision for minor guests who became intoxicated at their home and, in particular, whether defendants properly supervised their departure from the premises (compare Rudden v Bernstein, 61 AD3d 736, 738 [2d Dept 2009]). Since the basis of any liability on defendants’ part, assuming proximate cause, rests on the duty to supervise (see Appell v Mandel, 296 AD2d 514 [2d Dept 2002]), rather than their duty as landowners, it is not dispositive that the injury occurred off premises. As a result, summary judgment should not have been granted in defendants’ favor and the cause of action for negligent supervision should be reinstated.

Chief Judge Lippman and Judges Cipajrick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

Order, insofar as appealed from, reversed, etc.  