Graney v. Graney

• Decision Date: 13 December 1973
• Citation: 43 A.D.2d 207,350 N.Y.S.2d 207
• Parties: Michael Sean GRANEY, an infant, by Robert E. Heslin, his guardian ad litem, Appellant, v. John A. GRANEY, Jr., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 207

350 N.Y.S.2d 207

43 A.D.2d 207

Michael Sean GRANEY, an infant, by Robert E. Heslin, his guardian ad litem, Appellant, v. John A. GRANEY, Jr., Respondent.

Supreme Court, Appellate Division, Third Department.

Dec. 13, 1973.

Lee, LeForestier & Frost, Troy (Jerome K. Frost, Troy, of counsel), for appellant.

Donohue, Bohl, Clayton & Komar, Albany (Myron Komar, Albany, of counsel), for respondent.

Before STALEY, J.P., and GREENBLOTT, SWEENEY, KANE and REYNOLDS, JJ.

GREENBLOTT, Justice.

This is an appeal from an order of the Supreme Court at Special Term, entered December 26, 1972 in Albany County, which granted defendant's motion to dismiss the complaint.

The plaintiff and defendant are, respectively, a child and his parent. The pertinent facts are sufficiently set forth in the dissenting opinion of Mr. Justice Staley. In our view, the determinative issue is the same as was presented in Holodook v. Spencer, 43 A.D.2d 129, 350 N.Y.S.2d 199 (decided herewith) and requires the same conclusion. That issue is not, as indicated by Mr. Justice Staley, whether Gelbman v. Gelbman, 2o N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192, abolished the Defense of intrafamily immunity for nonwilful Torts. We agree that that question would require an answer in the affirmative, and do not agree with Special Term that Gelbman is limited to situations where there is insurance. However, here, as in Holodook, conceding that no immunity defense could be asserted, the question is whether the plaintiff has alleged facts which even under the most liberal interpretation state a cause of action in the first instance. As we have today held in Holodook, such a cause of action has never been held to exist and does not exist under New York law as interpreted by the Court of Appeals or any of the four Appellate Divisions. Therefore, the order must be affirmed.

The order should be affirmed, without costs.

Order affirmed, without costs.

SWEENEY, KANE and REYNOLDS, JJ., concur.

STALEY, J.P., dissents and votes to reverse in a separate opinion.

STALEY, Justice Presiding (dissenting).

On August 7, 1967, Michael Sean Graney, an infant, four years of age, went to the playground of the Shaker Elementary School with his father, the defendant herein. While his father was watching a softball game on the playground site, Michael, who was playing on the school playground, attempted to climb an 11 foot high sliding board and fell from the ladder of the slide injuring his left arm and elbow.

The complaint alleges that the defendant was negligent in allowing the infant plaintiff to stray out of his immediate control, and to engage in dangerous play activity in using the slide. One of the specific allegations in the complaint was that defendant's negligence consisted in defendant's 'Permitting the infant plaintiff to engage in dangerous and unsafe activity in the aforesaid playground area, and to use the aforesaid dangerous slide, without any supervision and without any warning to him of the danger connected therewith.'

Defendant moved to dismiss the complaint upon the ground that it failed to state facts sufficient to constitute a cause of action. The trial court dismissed the complaint, assuming it stated a cause of action, holding, however, that the doctrine of parental immunity for nonwilful tort of unemancipated infants was the prevailing law of the State of New York in situations other than those where the parent is covered by compulsory insurance and, therefore, the said doctrine of parental immunity was a bar to the infant plaintiff's action.

In Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192, the Court of Appeals abolished the defense of intrafamily tort immunity for nonwilful torts, and rejected the proposition that intrafamily litigation would undermine parental authority and disrupt the peace of the family and thus contravene public policy. In the Gelbman case the court stated at page 439, 297 N.Y.S.2d at page 532, 245 N.E.2d at page 194, as follows:

'By abolishing the defense of intrafamily tort immunity for nonwillful torts, we are not creating liability where none previously existed. Rather, we are permitting recovery, previously denied, after the liability has been established.'

The basic issue here is whether Gelbman v. Gelbman (supra) completely abolished the intrafamily immunity doctrine which had previously barred all suits for nonwilful torts or should intrafamily tort immunity be continued in noncompulsory insurance situations, particularly in situations involving parental omissions rather than affirmative acts.

The Gelbman case citing many exceptions to the rule of intrafamily tort immunity which had been approved by the courts, held that the abrogation of the rule did not abandon the principle of public interest in the preservation of family unity stating at page 437, 297 N.Y.S.2d at page 530, 245 N.E.2d at page 193: 'Family unity can only be preserved in this case by permitting the present action.'

Judge Burke in the unanimous opinion of the court in Gelbman relied to a great extent upon Judge Fuld's dissent in Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 174 N.E.2d 718, which case was overruled in Gelbman, in which dissent it was stated, in part, at pages 474--476, 215 N.Y.S.2d at pages 37--39, 174 N.E.2d at page 720:

'If the present decision (affirming dismissal of an intrafamily tort suit complaint) were necessary to preserve the integrity of the family, I would subscribe to it. But I do not believe that it is. * * * (T)he doctrine of family immunity, which underlies the holding, is based on dubious prophecy and, at least when applied to deny redress in automobile negligence cases, is wrong in principle and at odds with justice and modern-day realities. * * *

'There is a wrong, it may be said, but the remedy is withheld for reasons of fundamental public policy, namely, to prevent undermining parental authority and disrupting the peace of the family. That principle might be compelling * * * if consistently and evenhandedly applied whenever a child sues his parent. But, since innumerable exceptions and qualifications to its application have evolved, it can no longer serve as a forceful or valid basis for denying liability.'

In my opinion, the decision in Gelbman completely abolished the doctrine of intrafamily tort immunity in New York, and the right to sue should not depend on whether there is insurance available to protect the defendant parent. The absence of a compulsory liability insurance fact situation should not bar an action by an infant against a parent for an injury based on the parent's negligence. In such actions, the general rules of negligence of reasonableness and ordinary care should be applied, and whether the parent's conduct was that of an ordinarily reasonable and prudent parent under the circumstances should become an issue for the jury to decide. (Pierce v. Helz, 64 Misc.2d 131, 314 N.Y.S.2d 453; Zelby v. Omansky, 61 Misc.2d 199, 304 N.Y.S.2d 899; Annacchino v. Annacchino, 61 Misc.2d 636, 306 N.Y.S.2d 603; D'Ambrosio v. D'Ambrosio, 60 Misc.2d 886, 304 N.Y.S.2d 154; Howell v. Perri, 60 Misc.2d 871, ...