SHERFEL v. GASSMAN

This is an action for declaratory and injunctive relief brought pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq., and the Declaratory Judgment Act, 28 U.S.C. § 2201. The plaintiffs are Nationwide Mutual Insurance Company ("Nationwide"), an Ohio corporation; the Benefits Administrative Committee ("the Committee"), Plan Administrator of the Nationwide-Sponsored Health and Welfare Employee Benefit Plans; and Joan Sherfel, a member of the Committee. Nationwide is the Plan Sponsor of the Plans, and the Committee is the named fiduciary of the Plans within the meaning of 29 U.S.C. § 1002(21). The Plans are administered in Columbus, Ohio.

The defendants are Roberta Gassman, Secretary of the State of Wisconsin Department of Workforce Development ("DWD"); Jennifer Ortiz, Administrator of the Equal Rights Division of the DWD; and John Byron Van Hollen, Attorney General of the State of Wisconsin, (collectively referred to in the complaint as the "State of Wisconsin" or "the state"). The Equal Rights Division of the DWD administers the Wisconsin Family and Medical Leave Act ("WFMLA"), Wis. Stat. § 103.10. Leave under the WFMLA is generally unpaid leave. Wis. Stat. § 103.10(5)(a) ("This section does not entitle an employee to receive wages or salary while taking family leave or medical leave."). However, the WFMLA does provide that "[a]n employee may substitute, for portions of family leave or medical leave, paid or unpaid leave of any other type provided by the employer." Wis. Stat. § 103.10(b).

The original complaint in this case was filed on October 5, 2009. On November 18, 2009, defendants filed a motion to dismiss the complaint. However, on February 1, 2010, plaintiffs filed a first amended complaint. Therefore, the motion to dismiss (Doc. No. 30) filed on November 18, 2009, is now moot. In the first amended complaint, plaintiffs allege that Nationwide is the sponsor of the Nationwide Insurance Companies and Affiliates Plan for Your Time and Disability Income Benefits ("the Plan"), which is available to associates of Nationwide and its affiliated entities in the forty-nine states in which they are employed. The Plan provides short-term disability ("STD") income benefits and long-term disability ("LTD") income benefits for employees who become disabled, as that term is defined in the Plan. The STD and LTD Programs do not provide accrued paid leave; rather, they provide disability income benefits to associates who become disabled and are unable to work. The Plan also includes the Your Time Program, which provides paid time off, upon a manager's approval, for any purpose, including vacation, sick leave, and leave under the Family and Medical Leave Act "FMLA" or any similar state law such as the WFMLA. These Plans are alleged to be ERISA plans.

The Plans are funded through the Nationwide Insurance Companies Affiliates Employee Health Care Trust ("the Trust"), and Nationwide and its affiliates, as well as Nationwide associates, make contributions to the Trust to fund the Plans. The

Committee, as Plan Administrator, is given the authority under the Benefits Administrative Committee Charter and the Plan to interpret and administer the Plan in accordance with ERISA and the terms of the Plan, and to authorize the payment of benefits from the Trust.

Plaintiffs further allege that on April 18, 2007, Katharina Gerum, a Nationwide associate employed in Wisconsin, filed a complaint with the DWD against Nationwide alleging that she made a request to receive STD benefits during intermittent time off from work to bond with her newborn child, and that the request was refused. Nationwide had approved her request to take intermittent WFMLA leave and also approved her use of Your Time accrued leave to pay her for the time off, but her request for STD benefits was denied because she was not disabled. The Plan and the Committee were not parties to the Wisconsin administrative proceedings. The matter was assigned to an administrative law judge ("ALJ") for the Equal Rights Division. In a final decision and order dated August 14, 2009, the ALJ concluded that Nationwide violated the WFMLA by not permitting Ms. Gerum to substitute paid STD benefits for unpaid leave under the WFMLA. The ALJ ordered Nationwide to permit Ms. Gerum to substitute paid leave under the STD plan for the eight days of leave she took under the WFMLA, and to restore the eight days of Your Time benefits which she took to cover her leave. The ALJ rejected Nationwide's argument that the associate had no remedy under the STD Plan because Nationwide lacked the authority to order payment from the Plan, and further stated that if there was no provision in the Plan to make the payments required by the WFMLA, then Nationwide must pay for the benefits. Plaintiff alleges that the same ALJ issued a decision in another matter on January 30, 2002, which ordered the substitution of STD benefits for unpaid WFMLA leave.

Plaintiffs further allege that Nationwide asked the Committee whether Ms. Gerum could be permitted to receive STD income benefits for leave under the WFMLA and whether the eight days could be restored to her Your Time account so as to comply with the ALJ's order. The Committee denied these requests. Nationwide alleges that if the Committee paid the STD benefits or restored the time off to Ms. Gerum's Your Time account, it would violate its fiduciary duty to the Plan participants and beneficiaries by acting contrary to the terms of the Plan. Since Nationwide was unable to pay benefits under the STD plan or to credit Ms. Gerum's Your Time account, Nationwide settled the matter with Ms. Gerum, but did not pay her STD benefits or credit her Your Time account.

Plaintiffs allege that the State of Wisconsin's continuing enforcement position is that the WFMLA is not pre-empted by ERISA, and that therefore Nationwide associates in Wisconsin will continue to make demands to substitute STD benefits for unpaid WFMLA leave. Plaintiffs allege that on October 5, 2009, another associate in Wisconsin inquired about substituting STD benefits for unpaid WFMLA leave during the period of her maternity leave, which commenced on January 15, 2010. Nationwide alleges that it has over 200 employees in Wisconsin who participate in the STD Program and who may claim a right to receive the payment of STD benefits under the WFMLA.

In Count I of the first amended complaint, plaintiffs assert a claim for injunctive relief. Plaintiffs allege that the State of Wisconsin's application of the WFMLA substitution provision to the Plan has caused and will cause irreparable harm to plaintiffs by putting plaintiffs in the position of choosing between violating

Wisconsin law and violating ERISA. Plaintiffs allege that the State's interpretation and application of the substitution provision forces plaintiffs to violate the terms of the Plan by paying STD benefits to plan participants who do not qualify for those benefits. Plaintiffs rely on the Supremacy Clause of the United States Constitution and ERISA's preemption provision, 29 U.S.C. § 1144(a), which states that ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan" covered by ERISA. 29 U.S.C. § 1144(a). Plaintiffs allege that the WFMLA substitution provision conflicts with and is preempted by ERISA because, as interpreted, it requires payment of STD income benefits to associates who are not disabled rather than deferring to Plan documents, interferes with the exclusive claims administration procedure established under ERISA, and prevents the Committee from determining eligibility for benefits pursuant to ERISA and the terms of the Plan.

Plaintiffs allege that they face additional claims by Nationwide's 200 Wisconsin associates in the future, as well as an immediate and continuing threat of enforcement actions under the WFMLA. Plaintiffs allege that if an injunction is not issued, Nationwide will have to expend time and resources defending itself during hearings in which the State of Wisconsin will assert jurisdiction under the WFMLA despite ERISA preemption. Plaintiffs allege that since the Equal Rights Division hearings apply only to employers, the Committee has no opportunity to protect its interests as Plan Administrator. Plaintiffs allege that since Oregon also has a substitution provision, but excludes disability benefits from the definition of accrued paid leave, plaintiffs are faced with having to administer the terms of the Plan and pay benefits from the Trust in a non-uniform manner, thereby violating ERISA's goal of uniform plan design and administration. Plaintiffs request an order prohibiting defendants from processing, investigating and adjudicating claims for benefits that are governed exclusively by ERISA, and prohibiting defendants from initiating or participating in a state court action that attempts to apply or enforce the WFMLA substitution provision against plaintiffs with regard to STD benefits.

In Count II of the first amended complaint, plaintiffs seek a declaratory judgment that the Plan is an ERISA plan, that the substitution provision of the WFMLA is preempted to the extent that it is interpreted and applied to require the payment of disability income benefits to associates who are not entitled to benefits under the terms of the Plan and/or ERISA, that the Committee is not required to grant substitution requests for STD income benefits to associates who are not disabled, and that Nationwide is not required to pay substitution requests for STD income benefits made by non-disabled associates out of general assets.

In Count III of the first amended complaint, the Committee, as Plan Administrator and a fiduciary under ERISA, requests instructions from the court that it may continue to administer the Your Time, STD and LTD income benefits in accordance with Plan documents and ERISA without regard to the WFMLA, as well as instructions from the court with respect to the proper handling of its responsibility over the Trust.

This matter is before the court on the motion of defendants (Doc. No. 47) to dismiss the first amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim for which relief may be granted.

In ruling on a motion to dismiss under Rule 12(b)(6), the court must construe the complaint in a light most favorable to the plaintiff, accept all well-pleaded allegations in the complaint as true, and determine whether plaintiffs undoubtedly can prove no set of facts in support of those allegations that would entitle them to relief. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v. Lucent Technologies, Inc., 520 F.3d 516, 519 (6th Cir. 2008); Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005). To survive a motion to dismiss, the "complaint must contain either direct or inferential allegations with respect to all material elements necessary to sustain a recovery under some viable legal theory." Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice. Id.

While the complaint need not contain detailed factual allegations, the "[f]actual allegations must be enough to raise the claimed right to relief above the speculative level," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and must create a reasonable expectation that discovery will reveal evidence to support the claim. Campbell v. PMI Food Equipment Group, Inc., 509 F.3d 776, 780 (6th Cir. 2007). A complaint must contain facts sufficient to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009). Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id. Determining whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Where the facts pleaded do not permit the court to infer more than the mere possibility of misconduct, the complaint has not shown that the pleader is entitled to relief as required under Fed.R.Civ.P. 8(a)(2). Ibid.

In evaluating a motion to dismiss, a court generally is limited to the complaint and exhibits attached thereto. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001). The court may consider a document or instrument which is attached to the complaint, or which is referred to in the complaint and is central to the plaintiff's claim. Fed.R.Civ.P. 10(c) ("[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes."); Doe v. SexSearch.Com, 551 F.3d 412, 416 (6th Cir. 2008) ("While our analysis primarily focuses on the complaint, `matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint . . . may be taken into account.'") (quoting Amini, 259 F.3d at 502). However, courts may also consider matters of public record. New England Health Care Employees Pension Fund v. Ernst Young, LLP, 336 F.3d 495, 501 (6th Cir. 2003) ("A court that is ruling on a Rule 12(b)(6) motion may consider materials in addition to the complaint if such materials are public records or are otherwise appropriate for the taking of judicial notice.").

Defendants argue that the first amended complaint should be dismissed because plaintiffs have failed to allege sufficient facts to demonstrate that they have standing to pursue their claims. To satisfy Article III's standing requirements, a plaintiff must show: "(1) it has suffered an `injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. V. Laidlaw Environmental Servs. (TOC) Inc., 528 U.S. 167, 180-81 (2000) (quotingLujan v. Defenders of wildlife, 504 U.S. 555, 560-61 (1992)). Standing is determined as of the time the complaint is filed.Cleveland Branch, National Assoc. For the Advancement of Colored People v. City of Parma, Ohio, 263 F.3d 513, 525 (6th Cir. 2001). General allegations of injury may suffice to demonstrate standing. White v. United States, 601 F.3d 545, 551 (6th Cir. 2010).

To have standing to seek an injunction in federal court, a plaintiff must show a non-speculative threat that "he will again experience injury as a result" of the alleged wrongdoing." City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). To have standing to seek federal declaratory relief, a plaintiff must "demonstrate actual present harm or the significant possibility of future harm." Fieger v. Ferry, 471 F.3d 637, 643 (6th Cir. 2006).

Plaintiffs' claims are based on ERISA's preemption provision. ERISA states that "the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. 29 U.S.C. § 1144(a). "The term `State law' includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State." 29 U.S.C. § 1144(c)(1). Plaintiffs allege that the WFMLA substitution is preempted to the extent that it unlawfully requires the payment of benefits from the Plan contrary to ERISA.

Defendants argue that plaintiffs have failed to allege an "injury in fact." They contend that plaintiffs face no imminent injury at this point because the Gerum case is over. They argue that any injury sustained by plaintiffs was due to the Gerum decision, not to the provisions of the WFMLA. Defendants further argue that it is speculative what enforcement position the State of Wisconsin would take in the future, and that any adverse effects suffered by plaintiffs resulted from the Gerum decision, which they allege is not binding on future proceedings.

Since the ALJ in Gerum construed and applied the WFMLA substitution provision in rejecting plaintiffs' preemption arguments and in ordering relief for the associate in that case, it is not possible to divorce the ALJ's adverse holding from the WFMLA substitution provision as the sole source of injury to plaintiffs. Defendants' argument that plaintiffs fail to allege that the WFMLA substitution provision is preempted is incorrect.See Am. Compl. ¶ 43 ("application of the substitution provision in contravention of the Plan documents is preempted by ERISA"); ¶ 45 (discussing § 1144(a) preemption); ¶ 46 ("The Wisconsin substitution provision, as interpreted to require the payment of STD income benefits to someone who is not disabled, as defined, is preempted by ERISA[.]"). The injuries alleged by plaintiffs do not end with the Gerum case. Rather, the circumstances of theGerum case provide factual support for plaintiffs' claim that a similar enforcement of the WFMLA substitution provision is likely in future cases.

In addition, plaintiffs' concerns about the interpretation and application of the WFMLA substitution provision are not based solely on the Gerum decision. In Aurora Medical Group v. Department of Workforce Development, Equal Rights Division, 236 Wis.2d 1, 612 N.W.2d 646 (2000), the Wisconsin Supreme Court addressed the question of whether the WFMLA substitution provision was preempted by ERISA. The court concluded that the WFMLA substitution provision "has no reference to nor clear connection with, ERISA plans." 236 Wis.2d at 15. The court further held that the substitution provision of the WFMLA was not preempted by ERISA. Id. At 25. Since the highest court of the State of Wisconsin has held that the WFMLA substitution provision is not preempted by ERISA, it is highly likely that any ALJ called upon to consider an employer's preemption defense would be convinced to reject that defense. While the decision in Gerum may not be binding in future DWD administrative proceedings, the WFMLA substitution provision, as interpreted by the Wisconsin Supreme Court in Aurora Medical Group would be. In light of the holding in Aurora Medical Group, defendants' argument that plaintiffs' alleged injuries are purely speculative and stem solely from the Gerum decision, not the WFMLA substitution provision, is unavailing. Plaintiffs have pleaded sufficient facts to show the existence of an actual controversy, not simply a subjective fear of future enforcement of the WFMLA substitution provision.

Plaintiffs have alleged sufficient facts to show that enforcement of the WFMLA substitution provision by requiring them to pay benefits from the STD plan would place them in an untenable position. Plaintiffs have alleged that they are fiduciaries of the Plan, which is allegedly governed by ERISA. Under ERISA, a plan must "specify the basis on which payments are made to and from the plan," 29 U.S.C. § 1102(b)(4), and the fiduciaries of the plan must administer the plan "in accordance with the documents and instruments governing the plan," 29 U.S.C. § 1104(a)(1)(D), making payments to a "beneficiary" who is "designated by a participant, or by the terms of [the] plan." 29 U.S.C. § 1002(8). Plaintiffs allege

In view of the foregoing discussion regarding said motion, a cause of action in negligence per se cannot obtain against John Squires and Diane Wolfe.

Accordingly, the plaintiffs have not met their burden to establish a prima facie case in negligence per se and there is no need to consider any counter argument by the defendants. In sum, Summary Judgment is denied as to the direct negligence of Diane Wolfe and John Squires.

The third cause of action of the underlying Complaint sets forth allegations against Diane Wolfe and John Squires in negligence per se. In light of the foregoing, the motion for Summary Judgment is denied.

The fourth cause of action in the underlying Complaint sets forth allegations against Diane Wolfe and John Squires in negligent entrustment of their vehicle. In light of the foregoing, the motion for Summary Judgment is denied.

The defendants argue that the plaintiffs must set forth evidence in admissible form or establish a prima facie entitlement to dismissal of their affirmative defense that plaintiffs have failed to mitigate their damages. It is noted that the defendants are using Summary Judgment language to oppose the plaintiffs motion under CPLR 3211; ". .there are still questions of fact requiring denial of that portion of plaintiffs motion or summary judgment (emphasis added) which seeks dismissal of the defendant's fifth affirmative defense of plaintiff's[sic] failure to mitigate damages" (see Affirmation in Opposition 1J60) and". . . [p]laintiffs have not set forth evidence in admissible form, nor have they established a prima facie entitlement to dismissal under CPLR 3211."(see Affirmation in Opposition ¶ 57).

This branch of plaintiffs' motion is made under CPLR 3211. As stated previously, this Court cannot treat the instant motion as a Summary Judgment motion absent notice to the parties (see Mihiovan v Grozavu, supra). Further, the record does not establish that defendant" deliberately charted a summary judgment course". Thus, this court will apply the standards applicable to a motion to dismiss pursuant to CPLR 3211. ( Sta-Brite Services, Inc. v Sutton, supra). The scope of review on the two motions differs in that the motion to dismiss examines the sufficiency of the pleadings, whereas Summary Judgment examines the sufficiency of the evidence underlying the pleadings. ( Friedman v Connecticut General Life Ins. Co., 30 AD3d 349). As such, the plaintiffs in support of a CPLR 3211 motion are not required to submit evidence in admissible form. ( Kempf v Magida, 37 AD3d 763).

Notwithstanding the foregoing, a party seeking to avail itself of this affirmative defense of failure to mitigate damages must establish that the injured party failed to make diligent efforts to mitigate its damages, and the extent to which such efforts would have diminished those damages ( Eskenazi v Mackoul 72 AD3d 1012). In the instant action, the defendants failed, in their verified answer, to give more than mere conclusory statements as to this affiramtive defense. Affirmative defenses plead as conclusions of law that are not supported by any facts are insufficient and should be dismissed. ( Falk v Gallo, 18 Misc.3d 1146A, [Sup. Court, Nassau County, 2008], quoting Plemmenou v Arvanitakis, 39 AD3d 612; see also Petracca v Petracca, 305 AD2d 566; Bentivegna v Meenan Oil Co., 126 AD2d 506). Further, CPLR 3211 (b) allows for dismissal of one or more defenses when that defense "is not stated or has no merit." Here, the defendants' contentions are no more than conclusory statements which contain opinions and not facts ( Seiler v Ricci's Towing Service, 210 AD2d 972). Accordingly, the plaintiffs' motion to strike this affirmative defense is granted.

The branch of the plaintiffs' motion seeking Summary Judgment is denied, and the motion to dismiss the fifth affiramtive defense, is granted.

The plaintiffs allege liability against both defendants in common law negligence and negligence per se in that in that they violated the New York General Obligations Law § 11-100 by providing alcohol to Timothy who was underage, procuring, furnishing, and allowing Timothy to consume alcohol on their premises when they knew him to be underage, permitting Timothy to become intoxicated while he was at their residence, and allowing Timothy to leave their home in an intoxicated state. They are also alleged to have violated the Nassau County Social Host Law by permitting knowingly permitting the underage Timothy Wolfe to consume alcoholic beverages at their home.

The defendants filed the instant motion contending that Timothy was not intoxicated, which is a perquisite for them to be found liable to Eric. Further, defendant Vivian Barkai argues that she was at work and she did not permit her daughter to host any such gathering in their home. Defendant, Talia Barkai, argues that she did not host a party nor did she provide alcohol to her guests.

With respect to underage drinking, there can be statutory liability under General Obligations Law § 11-100 which creates a cause of action in favor of a person injured as a result of the acts of an intoxicated minor if the injured party can demonstrate that he/she was injured by reason of the intoxication of a party who was under the age of 21, and that the host knowingly caused such intoxication by unlawfully furnishing or procuring alcoholic beverages for the underage person with the knowledge or reasonable cause to believe that such person was under 21. As such, violation of the state statute would sustain a cause of action in negligence perse. Section 64-4(a) of Nassau County's Local Law-commonly referred to as the "Social Host Law" predicates liability upon a host permitting the consumption of alcohol by minors, not upon a showing of harm to persons or property.

Nassau County's "Social Host Law" provides that:

"[i]t shall be unlawful for any person over the age of eighteen who owns, rents, or otherwise controls a private residence, to knowingly allow the consumption of alcohol or alcoholic beverages by any minor on such premises or to fail to take reasonable corrective action upon learning of the consumption of alcohol or alcoholic beverages by any minor on such premises. Reasonable corrective action shall include, but not be limited to: 1) making a prompt demand that such minor either forfeit and refrain from further consumption of the alcoholic beverages or depart from the premises; and 2) if such minor does not comply with such request, either promptly reporting such underage consumption of alcohol i) to the local law enforcement agency or ii) to any other person having a greater degree of authority over the conduct of such minor."

As defendant Talia Barkai was under the age of eighteen at the time of the events referred to herein, the foregoing provision is applicable only as to Vivan Barkai. The evidence in the record, which includes Vivian Barkai's testimony at deposition and the testimony of other deponents including Talia Barkai, indicates that she was at her place of employment for the entire duration of the party and she had no knowledge of any party and/or drinking, particularly underage drinking, occurring at her home. Therefore, she cannot be held liable under the local law and as to this issue, Summary Judgment is granted as to both defendants regarding this specific cause of action in violation of the Social Host Law.

General Obligations Law § 11-100 provides in pertinent part that:

"Any person who shall be injured in person, property, means of support or otherwise, by reason of the intoxication or impairment of ability of any person under the age of 21 years, whether resulting in his death or not, shall have a right of action to recover actual damages against any person who knowingly causes such intoxication or impairment of ability by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for such person with knowledge or reasonable cause to believe that such person was under the age of 21 years."

Moreover, General Obligations Law § 11-100 requires a showing that the very minor to whom the intoxicant was furnished actually became intoxicated and in his or her intoxicated state injured a third party. The defendants contend that the submitted toxicology report arising from tests conducted on Timothy Wolfe upon his admission to North Shore University Hospital, and annexed to their papers as Exhibit F, indicates that he was not intoxicated or impaired at the time of the accident. However, defendants, for some reason, did not highlight the report nor did they provide specific reference as to where the report was located in their voluminous medical exhibit. It is not for the Court to search through voluminous reports attached as exhibits to identify portions therein that may support a Summary Judgment movant's position. Consequently, the record is devoid of any conclusive evidence regarding this specific issue and defendants' Summary Judgment entitlement cannot obtain based upon this argument. ( Czyz v Murray Hill Mews Owners Corp., 21 Misc3d 1146(A), [Sup. Court, Kings County, Dec. 17, 2008]).

While the statute does not limit liability to those who physically provide alcohol to a minor, it requires a showing that defendant was more than an unknowing bystander, or an innocent dupe whose premises was used by underage people ( Guerica v Carter, 274 AD2d 553, 554). The statute has been strictly interpreted and does not apply to a homeowner or any person who has neither supplied alcohol to, nor procured alcohol for consumption by an underage person who causes injury to another. ( Nelson v Neng, 297 AD2d 313, 314). Here, as previously stated, defendant Vivian Barkai was at work in New York City on the night of the party and she was unaware that a party was being held at the premises at which alcohol was being consumed. Further, she had not given permission for her daughter to host an unsupervised party and there is no evidence that she either supplied, procured or assisted in supplying or procuring the alcohol/drugs which were allegedly consumed by defendant Timothy Wolfe at the party ( Fantuzzo v Attridge, 291 AD2d 871, 872).

Accordingly, defendant Vivian Barkai has sustained her entitlement to Summary Judgement under the cause of action in negligence perse under Genera! Obligations Law § 11-100. The Court, however, reaches a different conclusion as to defendant, Talia Barkai.

Significantly, beyond the explicit acts of purchasing for, or directly giving alcohol to, a minor, one who chooses to "participate in a scheme to furnish alcohol to underage individuals" may be considered to have furnished or assisted in procuring alcohol pursuant to the statute ( Rust v Reyer, 91 NY2d 355). This is particularly so if that person played an "indispensable role" in making the alcohol available ( Rust v Reyer, Id. at 361; O'Neill v Ithaca College 56 AD3d 869).

It is noted that the record is devoid of evidence that Talia Barkai actually purchased the alcohol consumed by Timothy. The key issue is whether the facts that: each of the 30 "guests" brought a six-pack of beer to the residence; the guests consumed beer on the premises; guests, particularly Timothy Wolfe, played drinking games such as "flip the cup" -a game that Talia testified that Timothy was winning; beer was "everywhere" and readily accessible to guests; and Talia took no steps to curtail the activity at her home, constitutes "furnishing" alcohol under the statute. (See Notice of Motion, Exhibit, H, Tr. Eric Parchment, p. 26, In. 13-22, p. 27, In. 4-13, Exhibit G, Tr. Timothy Wolfe, p. 59, In. 4-9). This evidence, when viewed in the light most favorable to defendant, discloses a question of fact as to whether Talia Barkai assisted in furnishing alcohol to Timothy Wolfe ( O'Neill v Ithaca College, supra).

The record sets forth facts demonstrating that Talia Barkai was more than an unknowing bystander or an innocent dupe whose premises were used by other minors seeking to drink ( Rust v Reyer, 91 NY2d 355 quoting Dodge v Victory Mkts., 199 AD2d 917; Reickert v Misciagna, 183 AD2d 151). Similarly, she was more than a passive participant who merely knew of the underage drinking and did nothing else to encourage it (see Rust v Reyer, supra; Notice of Motion, Exhibit J, Tr. Taliah Barkai, p. 73, In. 6-12, p. 75, In. 10-17, p. 76, In. 1-25, p. 77, In. 1-25, p. 79, In. 3-17). Accordingly, defendant, Talia Barkai, has not established an entitlement to Summary Judgment as to a cause of action in negligence per se.

In order for the plaintiffs to prevail on a claim of common law negligence, there must first be a legal duty owed by the defendants to the plaintiffs and such breach of duty by a party must have caused the injury (see Raquet v Braun, 90 NY2d 177, quoting Nassau Roofing Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599). Here, plaintiffs maintain that the defendants are liable because they breached a duty owed to Timothy Wolfe and ultimately to Eric Parchment in that the defendants failed to control or supervise the activities of guests at their home ( D'Amico v Christie, 71 NY2d 76).

However, while social hosts may be found liable where a factual issue has been presented regarding "whether it was foreseeable `that someone would get drunk at [a] party, . . . and cause injury to a third party'" ( Lane v Barker, 241 AD2d 739, quoting Comeau v Lucas, 90 AD2d 674); in this case, there was no proof of any uncontrolled party guests that may have led to a dangerous situation. Furthermore, despite the evidence in the record that Timothy Wolfe drank alcohol at the party, there is no proof in this record that his consumption was anything other than voluntary or that his actions needed to be controlled because he was exhibiting obvious signs of intoxication ( Dollar v O'Hearn, 248 AD2d 230).

Further, since the accident did not occur at the Barkai home, or in an area within the Barkai defendants' control, liability cannot be predicated on the common law duty of a landowner to control the conduct of third persons on their premises where they have the opportunity to control such persons and are reasonably aware of the need for such control. (see D'Amico v Christie, 71 NY2d 76, 85). As such, summary judgment is awarded to both Barkai defendants regarding a cause of action in negligence is granted.

In opposition, the plaintiffs submitted affidavits from plaintiff, Danitza Parchment, who asserted nothing more than wholly conclusory allegations devoid of evidentiary value ( Denenberg v North Shore University Hosp. 292 AD2d 493). No other evidence has been introduced in opposition to the instant Summary Judgment motion to raise a triable issue of fact as to whether the defendants' failed to exercise reasonable care or breached a duty, if owed, to Timothy Wolfe and Eric Parchment in common law negligence or, in the case of Vivian Barkai, as to whether she violated the General Obligations Law § 11-100 and the Nassau County Social Host Law.

Accordingly, defendant Vivian Barkai has met her burden of establishing prima facie entitlement to Summary Judgment dismissing the complaint as to said defendant, and defendant Talia Barkai has met her burden establishing entitlement to Summary Judgment dismissing the complaint only as to the cause of action against her in common law negligence and negligence in violation of the Nassau County Social Host Law. The complaint as to Vivian Barkai is dismissed in its entirety; the complaint as to Talia Barkai regarding the causes of action in negligence, is dismissed.

The plaintiffs' Bill of Particulars, served on all defendants on or about January 30, 2009, set forth various injuries and prognosis which included but was not limited to: shattered right femur in multiple pieces which required hardware repair including wires, bolts, screws and a rod; right femur midshaft commuted fracture; limitations and restrictions of motion; loss of function and use of the injured parts of the body; and loss of quality and enjoyment of life. In addition, the Bill of Particulars provided in relevant part; ". . . [a]ll of the . . . injuries and their sequelae are of a chronic protracted nature which will have permanent residual effects and which have manifested or will manifest permanent sequelae and to the extent the plaintiff expressly reserves the right to prove upon trial hereof any and all sequele and/or residuals which have manifested themselves prior to the time of trial herein including exacerbation of pre-existing injuries if any."(see Affirmation in Opposition, Exhibit A). Further, the bill states that Eric was a high school senior and a varsity football player at the time of the accident and his injuries caused him to be confined to his home and also limited his ability to freely ambulate where he incurred costs associated with home care and other out of pocket expenses. His injuries also precluded his continued participation on the school's varsity football team and he incurred damages in fees and expenses prepaid in anticipation of playing football.

The matter was certified as ready for trial on February 25, 2010 and the stipulation was executed by all parties. The plaintiffs served a Supplemental Bill of Particulars on April 1, 2010 which set forth additional injuries including but not limited to, a shortening of Eric's right leg by 1/8 of inch while alleging additional damages in that Eric was unable to participate in football activities where he would have secured a football scholarship. Specific costs for travel expenses in transporting Eric to college, replacement footwear, and college tuition for four years were also cited. In response to the Supplemental Bill of Particulars, defendants served a Notice for Discovery and Inspection on plaintiffs on or about April 19, 2010.

Plaintiffs filed a Note of Issue on or about April 15, 2010 and a Second Supplemental Bill of Particulars on or about May 1, 2010 which set forth additional treatment and injuries including but not limited to, "recommended secondary surgery to remove right thigh hardware to reduce the trochanteric bursitis and IT band syndrome". Prior to the filing of the Note of Issue, all pre trial discovery and examination of the parties had been conducted.

On or about May 11, 2010, defendants filed the instant motion alleging that the plaintiffs have claimed additional damages and injuries after the matter was certified for trial and after the filing service of the Note of Issue, specifically citing the claims of Eric's right leg shortening and the costs of Eric's airfare to travel to college, college tuition arising from Eric's inability to procure a college scholarship; and replacement footwear. The plaintiffs included their response to the defendants' Notice for Discovery and Inspection in their opposition papers to the instant motion filed on or about June 2, 2010 (see Affirmation in Opposition, Exhibit E).

The defendants argue that they are prejudiced by the additional claims in the supplemental bills of particulars and the matter remaining on the Court's calendar for trial precludes their ability to prepare a timely and appropriate defense. In alternative to the relief sought, the defendants seek an Order compelling plaintiffs to fully respond to the Notice for Discovery and Inspection and to compel the plaintiffs to testify regarding the new allegations set forth in the supplemental bills.

The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial" ( Twiddy v Standard Mar. Transp. Servs., 162 AD2d 264, 265, quoting Palazzo v Abbate, 45 AD2d 760). CPLR 3043 [b] provides in part:

". . . [a] party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than thirty days prior to trial. Provided however that no new cause of action may be alleged or new injury claimed and that the other party shall upon seven days notice, be entitled to newly exercise any and all rights of discovery but only with respect to such continuing special damages and disabilities. . . ."

Here, the plaintiffs do not seek to allege a new theory of liability; overall, the plaintiffs are basically elaborating on injuries cited in previous bills of particulars, purporting only to set forth the extent of plaintiffs' continuing disabilities as they become more apparent over time, specifically in infant plaintiffs, Eric's, case, with increased age and development ( Tate by McMahon v Colabello, 58 NY2d 84). The original bill of particulars gave notice of the injuries complained of and it specifically stated, as cited herein, that the injuries and damages were continuing while reserving plaintiffs right to append or supplement their bill accordingly ( Cossart v Fredenburgh, 50 AD2d 993).

While supplemental bills cited Eric's medical condition and prognoses arising from the original injuries set forth in the Bill of Particulars, specifically the recommended additional surgeries to Eric's right leg, the original bill clearly referred to injuries, fractures and treatment of the same leg which included screws, wires and various hardware. In light of the nature of Eric's injuries and the healing process relating to the maturing injuries, the more definitive, statements in the supplemental bills regarding essentially the same injuries recited in the earlier bill could not have come as a surprise to the defendants ( Tate by McMahon v Colabello, supra).

The Court acknowledges that the shortening of a right leg can be viewed as a new and/or additional injury; which certainly warrants further discovery ( Vargas v Villa Josefa Realty Corp., 28 AD3d 389). However, the plaintiffs alleged this shortening on the leg in its supplemental bill which was filed prior to the filing of their Note of Issue. As such, this supplemental bill would be considered an amended bill of particulars which was properly filed in view of the pre-note of issue posture of the case and the rule that the plaintiffs may amend their bill of particulars once as of right prior to the filing of the Note of Issue (see CPLR 3042[b]; Vargas v Villa Josefa Realty Corp, supra, quoting Wolfer v 184 Fifth Ave., LLC, 27 AD3d 280; Bartkus v New York Methodist Hosp., 294 AD2d 455; Villalona v Bronx-Lebanon Hosp. Ctr., 261 AD2d 185).

Regarding the claims of college tuition costs, it is duly noted that Eric did not testify affirmatively that he was awarded a scholarship or that he was being considered for a scholarship. The Court is certainly aware that costs associated with the loss of scholarship opportunities may be speculative. However, plaintiffs set up the foundation in the following testimony:

". . . Q Before this accident happened, had you spoken to any schools about playing football, either coaching staff or other recruiters come down and speak to you about playing football, either coaching staff or any recruiters come down and speak to you about playing for their schools?

A No. Well, this was supposed to be my break out year because I was on varsity since freshmen year. My coaches were expecting a lot from me and then the accident . . ." (See Affirmation in Opposition, Exhibit I, Tr. Eric Parchment, p. 174, In. 17 — 25).

It is noted that defendants limited their examination of Eric's scholarship potential by only inquiring if he had been awarded a scholarship, to which he answered in the negative (see Affirmation in Opposition, Exhibit I, Tr. Eric Parchment, p. 205, In. 15-17),

In regards to out of pocket expenses for traveling from his home to Buffalo State University where he is presently enrolled, the plaintiff offered testimony about his inability to drive and/or sit in a car for an extended period of time and the fact that he had to travel to the school by airplane (see Affirmation in Opposition, Exhibit I, Tr. Eric Parchment, p. 180 In. 23-25, p. 181 In. 1-6).

Also, at issue here is whether the plaintiffs may serve a second supplemental bill of particulars alleging additional damages and costs after the filing of the Note of Issue. Contrary to the defendants' contention, the recommendation that plaintiff have a secondary surgery to remove right thigh hardware did not constitute a new cause of action or new injury. Rather, that allegation constituted a claim of "continuing special damages and disabilities" (CPLR 3043 [b]) which can be asserted, as of right, pursuant to CPLR 3043(b) ( Fortunate v Personal Woman's Care, P.C., 31 AD3d 370; Berman v Wheels, Inc., 207 AD2d 704; Pines v Muss Dev. Co,, 172 AD 2d 600). While a supplemental bill of particulars may not be used to claim a wholly new category of special damages not previously asserted, the plaintiffs' original bill and evidence contained in the record fully set forth the elements supporting the recommended surgery resulting from the fracture of the right femur ( Pearce v Booth Mem. Hosp., 152 AD2d 553).

In light of the foregoing, there was no showing of prejudice by the defendants. Further, it is within the Court's discretion to deny defendants' motion to strike the Certificate of Readiness for Trial and Note of Issue, notwithstanding a claim of prejudice, where all pretrial discovery had been completed, including a physical and oral examination of plaintiffs and sufficient particulars had been given in response to original demands ( Karlitz v Midtown Hospital, 50 AD2d 756). Although the defendants were put on notice of plaintiffs claim for such damages in plaintiffs' original bill of particulars, and the supplemental bill of particulars did not change the nature of the claim, but only the amount sought, the court notes that plaintiffs have not demonstrated that they will be unduly burdened or prejudiced by further examination.

It is well settled that the supervision of discovery and the setting of reasonable terms and conditions for disclosure, are within the sound discretion of the Supreme Court. The determinative factor is whether the discovery is material and necessary to facilitate a proper defense; whether the effect of the examination is overly burdensome to the affected party; and whether, in allowing the examination, the fact finder will receive sufficient information to ensure a fair trial to all parties ( Perasevic vNouveau Elevator Industries, Inc. 2 Misc.3d 1006(A), [Sup. Court, Kings County, 2004]).

Here, the granting of the alternative relief sought by the defendants' relief to compel the examination of the plaintiffs will likely yield information which is material and necessary to a proper defense and sufficient to ensure a fair trial to all parties ( Perasevic v Nouveau Elevator Industries, Inc., supra). Given plaintiffs claim that he now has a more serious and permanent injury of a shortened leg, that he has been denied an opportunity to compete for scholarships thus incurring college costs, that he is incurring costs for replacement footwear, and costs for out of pocket expenses in travel, the court finds that any information garnered in regards to these supplemental claims, will be material and necessary to the defendants' defense.

Further, the supplemental bill of particulars was served after the Note of Issue was filed, and additional discovery has also continued subsequent to the filing of the Note of Issue. Accordingly, the court considers defendant's request to compel plaintiffs' examination as to foregoing supplemental issues to be appropriate ( Perasevic v Nouveau Elevator Industries, supra).

The motion to strike the Certificate of Readiness for Trial and Note of Issue is denied and further discovery and examinations before trial are to be conducted in the time and manner as set forth herein.

With respect to the in limine motion brought by plaintiffs Eric Parchment and Danzita Parchment and cross motion by defendants, Timothy Wolfe, Diane Wolfe and John Squires, the court notes the function of such a motion is to permit a party to obtain a preliminary order before or during trial to exclude the introduction of anticipated inadmissible, immaterial or prejudicial evidence or to limit its use. ( State v Metz, 241 AD2d 192, 198). Such a motion aids the trial process by enabling the court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of trial. ( Palmieri v Defaria, 88 F3d 136,141). Because a ruling on a motion in limine is subject to change as the case unfolds, the ruling constitutes a preliminary determination in preparation for trial. ( Palmieri v Defaria, supra at p. 139). Generally, a decision on a motion in limine, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission. ( Citlak v Nassau County Medical Center, 37 AD3d 640; Winograd v Price, 21 AD3d 956).

Under the circumstances extant, the court refers the in limine motions at bar to the trail judge, so that the issues raised by the motions, including the relevance of the evidence sought to be excluded, might be decided in the appropriate factual context. ( National Union Fire Ins. Co. v L.E. Meyers Co. Group, 937 F. Supp. 276, 287 [S.D.N.Y. 1996]).