Gelbman v. Gelbman
| Decision Date | 09 December 1966 |
| Citation | 275 N.Y.S.2d 712,52 Misc.2d 412 |
| Parties | Adele GELBMAN, Plaintiff, v. James D. GELBMAN, Defendant. |
| Court | New York Supreme Court |
David C. Gilberg, Mount Vernon, for plaintiff.
Clark, Gagliardi, Gallagher & Smyth, White Plains, for defendant.
The plaintiff commenced this negligence action against her unemancipated son to recover damages for injuries allegedly sustained by her in an automobile accident. It appears that the defendant son was operating plaintiff's car at the time of the accident and that he has placed the blame for the accident on the operator of another vehicle which was involved in the accident. Since the plaintiff was a passenger in her own car at the time of the accident, she may not recover damages against the owner or operator of the other vehicle if the operator of her own car was himself negligent (Gochee v. Wagner, 257 N.Y. 344, 178 N.E. 553).
It is well established that an unemancipated child will not be permitted to maintain an action against a parent for non-wilful personal injuries sustained by him (Sorrentino v. Sorrentino, 248 N.Y. 626, 162 N.E. 551; Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 174 N.E.2d 718). The underlying theory upon which this principle is founded is to maintain family unity, mutual respect and discipline (Cannon v. Cannon, 287 N.Y. 425, 40 N.E.2d 236). On the same theory, it would logically follow that a parent should not be permitted to maintain an action against an unemancipated child (Boehm v. C. M. Gridley & Sons, 187 Misc. 113, 63 N.Y.S.2d 587; Terwilliger v. Terwilliger, 201 Misc. 453, 106 N.Y.S.2d 481; Warren's Negligence, Vol. 3, § 9.01).
Accordingly, the plaintiff's motion is denied and the court on its own motion dismisses the complaint.
To continue reading
Request your trial
-
Purcell v. Frazer
...suits insofar as immunity is concerned. I.e., Gaudreau v. Gaudreau, 106 N.H. 551, 215 A.2d 695, 696 (1965); Gelbman v. Gelbman, 52 Misc.2d 412, 275 N.Y.S.2d 712 (1966); Fidelity Sav. Bank v. Aulik, 252 Wis. 602, 32 N.W.2d 613 (1948); and see Prosser on Torts § 116, at 886--888 (3d ed. 1964)......
-
Gelbman v. Gelbman
...son of plaintiff. The trial court, relying on prior decisions of this court, responded 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 In this appeal, plaintiff requests that we......
-
Gelbman v. Gelbman
...Order of the Supreme Court, Westchester County, dated January 11, 1967, affirmed, with $10 costs and disbursements. No opinion. 52 Misc.2d 412, 275 N.Y.S.2d 712. CHRIST, Acting P.J., and RABIN, BENJAMIN, MUNDER and NOLAN, JJ., ...
- County Trust Co. v. Duerr