23 N.Y.2d 434, Gelbman v. Gelbman

Citation23 N.Y.2d 434, 297 N.Y.S.2d 529
Party NameGelbman v. Gelbman
Case DateJanuary 09, 1969
CourtNew York Court of Appeals

Page 434

23 N.Y.2d 434

297 N.Y.S.2d 529

Adele GELBMAN, Appellant,


James D. GELBMAN, Respondent.

New York Court of Appeals

January 9, 1969.

Page 435

David C. Gilberg and Michael H. Gilberg, Mount Vernon, for appellant.

Page 436

William T. Gallagher, White Plains, for respondent.

BURKE, Judge.

Plaintiff Adele Gelbman was the passenger in an automobile owned by her and operated by her unemancipated 16-year-old son. This vehicle collided with the automobile owned and driven by one Herman Rudder while proceeding along a major thoroughfare in White Plains. Plaintiff, seriously injured in the accident, has commenced separate negligence actions against both drivers. The Rudder litigation has not yet been concluded, and is not now before the court. An insurance company, representing her son in the second action, has interposed as an affirmative defense the fact that defendant is the unemancipated son of plaintiff. The trial court, relying on prior decisions of this court, responded [297 N.Y.S.2d 530] by dismissing the complaint, 52 Misc.2d 412, 275 N.Y.S.2d 712. That determination was unanimously affirmed by the Appellate Division, 28 A.D.2d 826, 282 N.Y.S.2d 670.

In this appeal, plaintiff requests that we review and then revoke a rule of this State prohibiting child-parent suits for nonwillful torts, first established in 1928 (Sorrentino v. Sorrentino, 248 N.Y. 626, 162 N.E. 551) and twice reaffirmed (Cannon v. Cannon, 287 N.Y. 425, 40 N.E.2d 236; Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 174 N.E.2d 718). While those cases dealt with suits by minors against parents, the converse of the present situation, the underlying policy considerations which influenced those decisions--if presently viable--should be equally determinative of this appeal.

The majority in Badigian proffered three reasons for maintaining the intrafamily immunity doctrine, barring suits for nonwillful torts. Thus, it was noted that no other jurisdiction had seen fit to abolish the immunity doctrine. This inactivity was attributed, at least in part, to the belief that a suit by a child against a parent would have serious consequences upon the unity of that family. The immunity rule was characterized

Page 437

as 'a concept that cannot be rejected without changing the whole fabric of our society, a fundamental idea that is at the bottom of all community life' (Badigian v. Badigian, 9...

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