Berger by Berger v. City of New York

• Decision Date: 05 August 1998
• Citation: 177 Misc.2d 891,676 N.Y.S.2d 909
• Parties: , 1998 N.Y. Slip Op. 98,465 Alexander BERGER, an Infant, by His Parents, Andrew BERGER et al., Plaintiffs, v. CITY OF NEW YORK et al., Defendants. CITY OF NEW YORK, Third-Party Plaintiff, v. Andrew BERGER et al., Third-Party Defendants.
• Court: New York Supreme Court

Page 909

676 N.Y.S.2d 909

177 Misc.2d 891, 1998 N.Y. Slip Op. 98,465

Alexander BERGER, an Infant, by His Parents, Andrew BERGER

et al., Plaintiffs,

v.

CITY OF NEW YORK et al., Defendants.

CITY OF NEW YORK, Third-Party Plaintiff, v. Andrew BERGER et al., Third-Party Defendants.

Supreme Court, Kings County.

Aug. 5, 1998.

Silbert, Hiller & Sena, L.L.P., New York City (Michael B. Sena, of counsel), for plaintiffs.

Michael D. Hess, Corporation Counsel (Ralph A. Foertsch, of counsel), for City of New York, defendant.

MARSHA L. STEINHARDT, Justice.

Plaintiffs move this court for an Order dismissing the third party complaint. This is an action for personal injuries suffered by the infant plaintiff in connection with his alleged exposure to lead-based paint. Action was commenced on or about December 21, 1994 against the above-named defendants. It is plaintiff's position that the City was negligent in issuing instructions relating to the removal of lead-based paint; in conducting inspections in connection with the removal of the paint; and in issuing certificates that the premises were free of lead-based paint. The action continued and on or about March 27, 1997 a note of issue was filed by plaintiff. The City commenced a third-party action against plaintiff-parents in February of this year. It is the contention of the movants that the third-party action is untimely, as it was commenced well beyond the deadline set forth in the original court order providing for commencement of same. In addition, and more particularly, the moving plaintiffs contend that the third party complaint fails to set forth a legally cognizable cause of action and that the gravamen of said complaint is the negligent supervision of the infant by the parents.

The negligent failure to supervise a child is not recognized in the State as a tort actionable by the child against his or her parent (Parsons v. Wham-O, Inc., 150 A.D.2d 435, 436, 541 N.Y.S.2d 44; Zikely v. Zikely, 98 A.D.2d 815, 470 N.Y.S.2d 33, aff'd on memo. below 62 N.Y.2d 907, 479 N.Y.S.2d 8, 467 N.E.2d 892; see, Nolechek v. Gesuale, 46 N.Y.2d 332, 413 N.Y.S.2d 340, 385 N.E.2d 1268; Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338.) Similarly, a third party cannot seek contribution from a parent on the basis that a child's injury was the result, either in whole or in part, of the parent's failure to supervise the child (Reale v. Herco, Inc., 183 A.D.2d 163, 168, 589 N.Y.S.2d 502; Russo v. Osofsky, 112 A.D.2d 926, 492 N.Y.S.2d 623; Kroupa v. Southampton Hosp., 49 A.D.2d 926, 927, 374 N.Y.S.2d 37).

Hlavinka v. Slovak Sky Bungalow Colony, 203 A.D.2d 855, 856, 611 N.Y.S.2d 335 (3rd Dept., 1994)

Defendant, on the other hand, contends that plaintiff-parents are being "brought into the action," as third-parties, because they are the owners of the premises at issue; that they specifically requested and oversaw the renovations that caused lead-dust to be released into the atmosphere, which allegedly caused inhalation and ingestion of same by the infant. That it is not the intention of the City to allege, nor does the third party complaint sound in, negligent supervision. That the duty of the parents, vls-a-vis, their position of home owner would be the same to any person residing in the lead infested apartment.

The fact that third-party defendant is the mother of plaintiff...