Barker v. Kallash

• Citation: 91 A.D.2d 372,459 N.Y.S.2d 296
• Parties: James BARKER, as guardian ad litem of George Barker, an infant over the age of 14, et al., Appellants, v. Abdullah KALLASH, et al., Defendants; Daniel Melucci, Sr., et al., Respondents.
• Decision Date: 07 February 1983
• Court: New York Supreme Court Appellate Division

Page 296

459 N.Y.S.2d 296

91 A.D.2d 372

James BARKER, as guardian ad litem of George Barker, an infant over the age of 14, et al., Appellants, v. Abdullah KALLASH, et al., Defendants Daniel Melucci, Sr., et al., Respondents.

Supreme Court, Appellate Division Second Department.

Feb. 7, 1983.

Marvin Suss, New York City (Richard T. Farrell, Brooklyn, of counsel), for appellants.

J. Robert Morris, New York City (Jeffrey S. Rovins, New York City, of counsel), for respondents.

Before MOLLEN, P.J., and NIEHOFF, RUBIN and BOYERS, JJ.

NIEHOFF, Justice.

On this appeal we are called upon to determine whether one who is injured while engaged in a concededly wrongful act, the making of a "pipe bomb", may maintain an action against his alleged cohorts and contraband suppliers in order to recover money damages for the injuries sustained. Inasmuch as a recovery in such case would result in allowing one who was committing wrongful conduct injurious to the public interest to recover money damages which were caused by his own wrongdoing, we hold that the action is not maintainable in the courts of this State. Accordingly, we affirm the order of Special Term which granted defendants Meluccis' motion for summary judgment dismissing the complaint as to them.

The plaintiffs, James Barker as guardian ad litem of George Barker, an infant over the age of 14, and James Barker on behalf of himself, commenced this action against the defendants in order to recover for personal injuries sustained by the infant. The complaint consists of four causes of action.

In the first cause of action it is alleged that on June 26, 1976 the infant plaintiff was on the Kallash property when "he was seriously injured by an explosion of fire-crackers or a container created from said firecrackers". In said cause of action it is claimed that the infant defendants Ayman and Anas Kallash had bought firecrackers with the knowledge of the defendants Abdullah and Aziza Kallash, their parents, removed the powder from the firecrackers, and placed it into the container which ultimately exploded in George Barker's hands.

In the second cause of action it is alleged that infant defendant Daniel Melucci, Jr. and his parents, Daniel Melucci, Sr. and Joanne Melucci, are liable to George Barker because Daniel Melucci, Jr. (nine years of age at the time) sold the firecrackers in question to Ayman and Anas Kallash.

In the third cause of action it is alleged that infant defendant Robert Judge and his mother Lillian Judge are liable to George Barker because sometime prior to the date of the accident Robert Judge sold the fireworks to infant defendant Daniel Melucci, Jr.

The fourth cause of action is a derivative cause on behalf of the plaintiff father, James Barker.

Examinations before trial were conducted of plaintiff George Barker and a number of the defendants. Different versions of the incident in question were given by the parties.

According to plaintiff George Barker (hereinafter plaintiff), on the afternoon of June 25, 1976, at which time he was almost 15 years of age, he was in the backyard of his home with both Ayman Kallash and Anas Kallash. Towar the end of the afternoon the three youths yearned for a bigger "bang" so they decided to make a "pipe bomb" which was to be constructed of three to four-inch length of pipe approximately one inch in diameter. The pipe was grooved and was to be secured by a screw cap at each end. Plaintiff obtained the pipe and metal caps from his father's workshop, which workshop also contained powder used for loading shotgun shells by hand. However, he denied that such powder was used in making the pipe bomb. Before assembling the bomb, plaintiff drilled a hole in the pipe in order to insert a fuse. While he was getting the pipe and caps, Anas Kallash and Ayman Kallash were returning from their home with gunpowder and firecrackers respectively, which plaintiff had told them to procure. While plaintiff held the pipe, Ayman Kallash poured the gunpowder into it. Plaintiff then screwed one cap to the pipe and, while attempting to screw the second cap to the pipe, it exploded causing serious injury to both his hands.

The Kallash brothers' version of the incident differs in a number of ways from that given by plaintiff. However, for the purposes of this appeal, we will accept the plaintiff's version of the incident.

Defendants Daniel Melucci, Sr. and Joanne Melucci moved for summary judgment dismissing the complaint on the grounds that "(1) no evidence admissible against defendants exists to prove the allegations of plaintiff's complaint, and (2) plaintiff, by virtue of his wrongful and illegal conduct, is barred from recovering for any damages sustained while engaged in such conduct".

In granting the motion for summary judgment dismissing the complaint against said defendants, Special Term wrote:

"George Barker, by participating in the making of a pipe bomb was engaged in wrongful if not illegal conduct (see Penal Law, §§ 265.02 and 270.00, subd 2[b][i] ). The well-settled public policy of this State as initially expressed by the Court of Appeals in the case of Riggs v Palmer (115 NY 506, 511-512 ) is that:

" 'No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statute'

"The courts of this state have consistently applied this rule by refusing to allow a party to establish a claim based on his own wrongful conduct (see, e.g., Stone v Freeman, 298 NY 268, 271 ; Carr v Hoy, 2 NY2d 185, 187-188 [158 N.Y.S.2d 572, 139 N.E.2d 531]; McConnell v Commonwealth Pictures Corp., 7 NY2d 465, 471 [199 N.Y.S.2d 483, 166 N.E.2d 494]; Reno v D'Javid, 55 AD2d 876, 877 , affd 42 NY2d 1040 [399 N.Y.S.2d 210, 369 N.E.2d 766]; Matter of Hines v Sullivan, 105 Misc 2d 288, 289 ). As stated by the Court of Appeals in Carr v Hoy (supra [2 N.Y.2d at] p 188 [158 N.Y.S.2d 572, 139 N.E.2d 531] ), 'We are closing our courts to one who would prove his own wrongdoing as a basis for his supposed "rights" '.

"The fact that New York now has a comparative negligence or fault statute (CPLR 1411) would have no bearing upon this established public policy. We have here a question not of George Barker's own fault, vis-a-vis that of defendants, but rather an issue of Barker's conduct being such that in the first instance he is precluded from bringing a lawsuit based thereon.

"Accordingly, defendants Daniel and Joanne Melucci's motion for summary judgment dismissing the complaint against them is granted."

On appeal the Barkers assert that contrary to Special Term's conclusion, the conduct of plaintiff does not preclude recovery in this case. More specifically, it is claimed that plaintiff's conduct is not the kind of wrongful conduct condemned by Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 and that, in any event, the arrival of comparative fault in New York State, via article 14-A of the CPLR, permits the maintenance of this action notwithstanding plaintiff's own wrongdoing.

As the record now stands before us it is clear that plaintiff was engaged in unlawful conduct at the time of this accident. Indeed, in the Barkers' brief it is conceded that plaintiff was engaged in "wrongdoing" while he was making the pipe bomb. As a result, the legal issues before us have been narrowed and we must focus our attention on whether the wrongdoing of plaintiff is the sort of conduct toward which the rule of Riggs v Palmer (supra) is directed and, if so, whether that rule has been abrogated by the adoption in New York of a comparative fault statute.

In Riggs v Palmer (supra), the defendant Elmer Palmer murdered his grandfather Francis B. Palmer in order to keep him from revoking provisions in his will favorable to the defendant, and presumably to take the property earlier than nature would have permitted. The Court of Appeals (p. 511, 22 N.E. 188) held that the public policy of this State required that Palmer not be allowed to profit from his wrongdoing and set forth the fundamental maxim of common law that:

"No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim on his own iniquity, or to acquire property by his own crime."

Through the years the maxim has been interpreted to preclude a derivative action brought by a plaintiff whose negligence caused injury to his spouse (McKay v. Syracuse Rapid Tr. R. Co., 208 N.Y. 359, 364, 101 N.E. 885); utilized to prevent unjust application of the Statute of Frauds (Imperator Realty Co. v. Tull, 228 N.Y. 447, 457, 127 N.E. 263; Keystone Hardware Corp. v. Tague, 246 N.Y. 79, 158 N.E. 27); and applied to prevent those engaged in illegal activities such as gambling (Hofferman v. Simmons, 290 N.Y. 449, 49 N.E.2d 523), bribery (Stone v. Freeman, 298 N.Y. 268, 82 N.E.2d 571; McConnell v. Commonwealth Pictures Corp., 7 N.Y.2d 465, 199 N.Y.S.2d 483, 166 N.E.2d 494), public indecency (Carr v. Hoy, 2 N.Y.2d 185, 158 N.Y.S.2d 572, 139 N.E.2d 531), the unlawful practice of law (Spivak v. Sachs, 16 N.Y.2d 163, 263 N.Y.S.2d 953, 211 N.E.2d 329), or pornography (Braunstein v. Jason Tarantella, Inc., 87 A.D.2d 203, 450 N.Y.S.2d 862) from invoking the aid of the courts to obtain ill-gotten moneys.

In Reno v. D'Javid, 55 AD2d 876, 390 N.Y.S.2d 421, affd. 42 N.Y.2d 1040, 399 N.Y.S.2d 210, 369 N.E.2d 766, the Appellate Division, First Department, summarily dismissed the plaintiff's causes of action based upon medical malpractice, breach of warranty, and assault because they arose out of an illegal abortion performed by the defendant physician which the plaintiff had requested. That court held (p. 877, 390 N.Y.S.2d 421) that "[p]laintiff, having participated in an illegal act, may not profit therefrom", and closed...