D'Ambrosio v. D'Ambrosio
| Decision Date | 09 September 1969 |
| Parties | Dorothy D'AMBROSIO, Edward J. D'Ambrosio and Diane D'Ambrosio, infants, by their Guardian ad Litem Nicholas D'Ambrosio, Plaintiffs, v. Joseph D'AMBROSIO, Defendant. |
| Court | New York Supreme Court |
In an action by three infant plaintiffs to recover damages for personal injuries allegedly sustained while they were riding as passengers in an automobile owned and operated by the defendant, their father, the plaintiffs move, pursuant to CPLR 3211(b), to dismiss four affirmative defenses asserted in the answer.
Three of the affirmative defenses are identical in substance and allege that the respective plaintiffs, both at the time of the happening of the accident and at the time the action was commenced, were unemancipated minor children of the defendant and, therefore, barred from bringing suit against him for a nonwillful tort. The fourth affirmative defense, asserted against the causes of action of all three plaintiffs, alleges that since the accident occurred February 14, 1964 and the action was not commenced until March 1, 1969, the suit is barred by the three-year statute of limitations applicable to personal injury actions (CPLR 214).
Plaintiffs' motion must be granted in its entirety and the four affirmative defenses must be stricken. Clearly, since it is conceded by all parties that the plaintiffs were infants at the time of the happening of the accident and at the time the action was commenced, the tolling provision of CPLR 208 protects the right of these children to maintain the action even upon reaching majority.
Insofar as the relationship of the parties is concerned, the recent case of Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192, has abolished the doctrine of intra-family tort immunity in this State. It is true, as defendant contends, that the Gelbman case, Supra, involved a parent suing an infant son, the converse of the situation in the instant case. Nevertheless, the language of Judge Burke, speaking for the entire Court, clearly applies to actions where the child is plaintiff as well as defendant (see 23 N.Y.2d at p. 438, 297 N.Y.S.2d at p. 531, 245 N.E.2d at p. 193). Defendant also argues that the Gelbman case requires that the intra-family immunity rule still be applied on a case-by-case basis...
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