In any event, the record demonstrates that plaintiff did not rely on the assumption of any alleged affirmative duty ( see Cuffy, 69 NY2d at 263). The court also properly granted that part of defendant's motion seeking dismissal of the second and third causes of action insofar as they allege the negligence of the police based on the breach of a duty voluntarily undertaken by defendant ( cf. Parvi v. City of Kingston, 41 NY2d 553, 559-560; Walsh v. Town of Cheektowaga, 237 AD2d 947, lv dismissed 90 NY2d 889). Both Parvi and Walsh concerned the duty of one who "'takes charge of another who is helpless adequately to aid or protect himself'" and noted that one who voluntarily does so must exercise reasonable care to secure that person's safety ( Parvi, 41 NY2d at 559; see Walsh, 237 AD2d at 947-948; cf. Kingsbury v. Welch, 306 AD2d 850).

Memorandum: 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; Walsh v. Town of Cheektowaga, 237 A.D.2d 947, lv denied 90 N.Y.2d 889). 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.

Defendants cite a more pertinent case from another jurisdiction, Holdson v. State of Maryland, 637 A.2d 871, 879 (Md.Ct.App. 1994) (officers have no duty of care to intoxicated passenger when driver arrested). Ayala cites contrary authority from yet another jurisdiction, Walsh v. Town of Cheektowaga, 237 A.D.2d 947, 654 N.Y.S.2d 912 (N.Y.Ct.App. 1997) (officers have a duty of care to intoxicated passenger when driver arrested). Since this is an issue of Arizona law the task is to follow the decisions of Arizona's highest court or predict how that court would resolve the issue.

Decided July 1, 1997 Appeal from 4th Dept; 237 A.D.2d 947 FINALITY OF JUDGMENTS AND ORDERS

Therefore, the question is whether Bally owed any duty to the decedent. Generally speaking, one does not owe a duty to come to the aid of a person in peril, whether the peril is medical or otherwise ( see McDaniel v. Keck, 53 A.D.3d 869, 872, 861 N.Y.S.2d 516; Walsh v. Town of Cheektowaga, 237 A.D.2d 947, 654 N.Y.S.2d 912; see also Plutner v. Silver Assoc., Inc, 186 Misc. 1025, 61 N.Y.S.2d 594; Chappill v. Bally Total Fitness Corp., 2011 N.Y. Slip Op. 30146(U) ). However, “ ‘one who assumes a duty to act, even though gratuitously, may thereby become subject to the duty of acting carefully’ ” ( Mirza v. Metropolitan Life Ins. Co., 2 A.D.3d 808, 809, 770 N.Y.S.2d 384, quoting Nallan v. Helmsley–Spear, Inc., 50 N.Y.2d 507, 522, 429 N.Y.S.2d 606, 407 N.E.2d 451).

The court also properly granted the cross motion of Ball for summary judgment dismissing the complaint and all cross claims against him on the ground that he had no duty to warn decedent of the existence of the cable. Plaintiff contends that the deposition testimony of Ball concerning the facts and circumstances of decedent's accident is inadmissible under the Dead Man's Statute (CPLR 4519) and thus may not be considered in support of Ball's cross motion ( see Phillips v Kantor Co., 31 NY2d 307, 313; Walsh v Town of Cheektowaga, 237 AD2d 947, 948, lv dismissed 90 NY2d 889). Even assuming, arguendo, that plaintiff is correct, we conclude that Ball nonetheless met his initial burden by establishing as a matter of law that he owed no duty of care to decedent ( see generally Ostrowski v Baldi, 61 AD3d 1403, lv denied 13 NY3d 701). Specifically, Ball established that he did not own the property where the accident occurred ( see id.), and that he neither created nor contributed to the allegedly dangerous condition on the property, which is adjacent to property occupied by Ball and owned by his parents ( see Haymon v Pettit, 9 NY3d 324, 328, rearg denied 10 NY3d 745; see also Cleary v Harris Hill Golf Ctr., Inc., 23 AD3d 1142). In opposition to the cross motion, plaintiff failed to raise a triable issue of fact whether Ball voluntarily assumed a duty to decedent at the time of the accident ( see generally Heard v City of New York, 82 NY2d 66, 72-73, rearg denied 82 NY2d 889). The suggestion by Ball to decedent that they ride their A

Although defendants met their initial burden on the motion, the affidavit of plaintiff's accident reconstruction expert raises triable issues of fact whether the accident occurred in the manner described by defendant ( see Sitaras v. James Ricciardi Sons, 154 AD2d 451, 452, lv denied 75 NY2d 708; Soulier v. Hughes, 119 AD2d 951, 953). Contrary to the contention of defendants and the conclusion of the court, the opinions of plaintiff's expert are neither speculative nor conclusory ( see Sitaras, 154 AD2d at 453; cf. Rachlin v. Volvo Cars of N. Am., 289 AD2d 981, 982; Terwilliger v. Dawes, 204 AD2d 433, 434). Further, we are reluctant to uphold an award of "summary judgment against a plaintiff in a wrongful death action since the plaintiff is not held to as high a degree of proof as where an injured plaintiff can himself describe the occurrence" ( Zibbon v. Town of Cheektowaga, 51 AD2d 448, 450, appeal dismissed 39 NY2d 1056; see Walsh v. Town of Cheektowaga, 237 AD2d 947, 948, lv dismissed 90 NY2d 889). Viewing the evidence in the light most favorable to plaintiff ( see Renda v. Frazer, 75 AD2d 490, 495-496) and allowing for the fact that decedent cannot testify ( see Noseworthy v. City of New York, 298 NY 76, 80), we conclude that, through the affidavit of her expert, "plaintiff has shown `facts and conditions from which the negligence of [defendants] and the causation of the accident by that negligence may be reasonably inferred'" ( Salles v. Manhattan Bronx Surface Tr. Operating Auth., 250 AD2d 548, 548, lv denied 92 NY2d 817, quoting Ingersoll v. Liberty Bank of Buffalo, 278 NY 1, 7).

Here, the Highway Patrol Officer removed Ms. Maldonado from a potentially dangerous situation and escorted her to a secure public place where the officer knew, from personal experience, there was a telephone she could use to call her husband. He then made certain that she entered the restaurant before driving Ms. Manete to the police station ( cf. Walsh v. Town of Cheektowaga, 237 AD2d 947, lv denied 90 NY2d 889; Parvi v. City of Kingston, supra). Ms. Maldonado later wandered onto Route 347 where, approximately a half hour after Ms. Manete's arrest, she was struck by a passing motorist.

In any event, even if someone had suspected that some of his answers were inaccurate or even false, that employee still could not have forced the man to verify his oral responses by providing supporting documentation. In an attempt to pigeonhole the necessary element of duty into this case, plaintiff places herself in the position of one to whom a duty, although not originally owed, was ultimately owed by virtue of voluntary affirmative actions of defendant's employees, citing Parvi v. City of Kingston ( 41 N.Y.2d 553) and Walsh v. Town of Cheektowaga ( 237 A.D.2d 947,lv dismissed 90 N.Y.2d 889). Each of these cases is premised on the rule embodied in the Restatement (Second) of Torts § 324, commonly referred to as the "good samaritan" rule, which provides as follows: The plaintiff in Parvi v. City of Kingston (supra) was severely injured after being struck by a car, having been abandoned by police in an intoxicated condition 350 feet from a busy State highway. The plaintiff's daughter in Walsh v. Town of Cheektowaga (supra) died after being struck by a train, having been permitted by police to walk away from the scene of a traffic stop in an intoxicated condition.

Because no party has alleged that the injuries occurred while this 13-month-old child was somewhere other than in plaintiffs' or defendants' home, determination of the cause of the injury and any liability on the part of defendants turns primarily upon an assessment of the parties' credibility. As the nonmoving parties, plaintiffs are entitled to the benefit of the doubt and the favorable inference that the injuries were sustained while in Moore's care. Although plaintiffs clearly will bear the burden of proof on the issue at trial (see, Henry v. General Motors Corp., Chevrolet Motor Div., 201 A.D.2d 949, lv denied 84 N.Y.2d 803), they raised sufficient issues of fact in the context of this summary judgment motion to warrant having the circumstantial evidence and defendants' credibility concerning the child's injury tested by cross-examination and assessed by the trier of fact (see, Walsh v. Town of Cheektowaga, 237 A.D.2d 947, 948, lv dismissed 90 N.Y.2d 889; Kelly v. Le Moyne Coll., 199 A.D.2d 942, 943-944; Scott v. Keener, 186 A.D.2d 955, 958; Fulmont Mut. Ins. Co. v. Toran, 158 A.D.2d 829, 831). Supreme Court, however, erred in granting National's motion for summary judgment and making a declaration in its favor.