Howell v. Perri

• Decision Date: 16 September 1969
• Docket Number: 2,Nos. 1,s. 1
• Citation: 60 Misc.2d 871,304 N.Y.S.2d 156
• Parties: Creig HOWELL, an infant under the age of 14 years, by his mother and natural guardian Quay Howell, and Quay Howell, Plaintiffs, v. Frank PERRI, Defendant. Creig HOWELL, an infant under the age of 14 years, by his mother and natural guardian, Quay Howell, Plaintiffs, v. Charles HOWELL, Defendant. Action
• Court: New York Supreme Court

Page 156

304 N.Y.S.2d 156

60 Misc.2d 871

Creig HOWELL, an infant under the age of 14 years, by his

mother and natural guardian Quay Howell, and Quay

Howell, Plaintiffs, v. Frank PERRI, Defendant.

Creig HOWELL, an infant under the age of 14 years, by his mother and natural guardian, Quay Howell, Plaintiffs, v. Charles HOWELL, Defendant.

Action Nos. 1, 2.

Supreme Court, Special Term, Bronx County, Part I.

Sept. 16, 1969.

Jawitz & Jawitz, Wilbur S. Talisman, New York City, of counsel, for plaintiffs.

Pizzitola & DiBlasi, Brooklyn, for defendant.

JACOB MARKOWITZ, Justice.

This is a motion by plaintiffs to consolidate two negligence actions and to dismiss the affirmative defense in the answer of defendant, Charles Howell.

The plaintiff Creig Howell, an unemancipated three year old infant, sues his father Charles Howell for damages for personal injuries claimed to have been sustained by the infant while riding as a passenger in an automobile owned and operated by his father.

The threshold question is whether this action may be maintained by the unemancipated minor child against his parent, with whom he resides, is dependent upon for his maintenance and support, and is under his parental supervision and control, all of which is alleged as affirmative defenses to the action.

In sum, the defendant pleads the rule of intra-family tort immunity.

The plaintiff moves to dismiss the affirmative defenses pursuant to CPLR 3211(b), because of the recent case of Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192, which abolished the defense of intrafamily tort immunity for a non-wilful tort in an automobile case by the mother, as plaintiff, against her unemancipated minor son. The Gelbman case permitted the suit by the mother, who was injured while a passenger in an automobile owned by her and operated by her unemancipated 16 year old son. Although Gelbman did not involve, as is manifest, an unemancipated child plaintiff, it nonetheless stated that the prohibitory intrafamily tort rule as expressed in Sorrentino v. Sorrentino, 248 N.Y. 626, 162 N.E. 551, and reaffirmed in Cannon v. Cannon, 287 N.Y. 425, 40 N.E.2d 236, and in Badigian v. Badigian, 9 N.Y.2d 472, 474, 215 N.Y.S.2d 35, 37, 174 N.E.2d 718, 719 (minor child v. parent), should no longer obtain.

In Gelbman, the court overruled the decisions in Sorrentino, Cannon and Badigian, and it held intrafamily suits for non-wilful torts are permissible. '* * * The doctrine of intrafamily...