Searles v. Dardani

• Decision Date: 08 August 1973
• Citation: 347 N.Y.S.2d 662,75 Misc.2d 279
• Parties: Steven M. SEARLES, an Infant, by his parent, John Searles, et al., Plaintiffs, v. Mary R. DARDANI, Defendant.
• Court: New York Supreme Court

Page 662

347 N.Y.S.2d 662

75 Misc.2d 279

Steven M. SEARLES, an Infant, by his parent, John Searles et al., Plaintiffs, v. Mary R. DARDANI, Defendant.

Supreme Court, Special Term, Albany County.

Aug. 8, 1973.

Bender Solomon, Albany, for plaintiffs.

Carter, Conboy, Bardwell & Case, Albany, for defendant; Frank T. Mahady, Albany, of counsel.

HAROLD J. HUGHES, Justice:

In this action by an infant for personal injuries and by his father for loss of services and meeical expenses, defendant has moved for leave to serve an amended answer asserting a counterclaim against the father based on his alleged failure to supervise the infant and seeking an apportionment of defendant's liability to the infant, if any, pursuant to Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288.

The complaint alleges that defendant negligently operated her automobile upon a public highway abutting the plaintiffs' residence as to strike and injure the infant pedestrian. The proposed amended answer alleges that the infant, four and one-half years of age, darted into the highway into the path of defendant's car, and that the infant's injuries were caused, wholly or in part, by the father's failure to properly supervise the child.

As Mr. Justice Mahoney observed in Holodook v. Spencer, 73 Misc.2d 181, 340 N.Y.S.2d 311, the question posed by this motion would not have arisen before the decision in Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, Supra, since the named defendant, being an active tort-feasor, would not be permitted to seek indemnification from any joint tort-feasor. Dole abolished the activepassive test, and now a party named in a negligence action may, by impleader or counterclaim, join any other person he claims caused or contributed to the plaintiff's injury to obtain indemnification or contribution based on their respective degrees of fault.

In Sorrentino v. United States, D.C., 344 F.Supp. 1308, Dole was combined with Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192, which had abolished the defense of intrafamily tort immunity for nonwillful torts, to permit the defendant owner of a vehicle which had struck an infant bicyclist to assert a counterclaim and third-party complaint against the infant's parents for negligent supervision.

The courts of this State have been reluctant to follow the rationale of the Federal court, for the result conflicts with the policy against imputing a parent's negligence to an infant plaintiff (General Obligations Law, § 3--111; see Collazo v. Manhattan & Bronx Surface Tr. Operating Auth., 72 Misc.2d 946, 339 N.Y.S.2d 809).

Some judges have found that Sorrentino v. United States, D.C., 344 F.Supp. 1308, Supra, was based on a misinterpretation of the Gelbman decision, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192, Supra, which they read as permitting an infant to sue a parent only when the latter is protected against personal liability by compulsory insurance (Kiernan v. Jones, 73 Misc.2d 829, 342 N.Y.S.2d 873). However, this court has rejected such a narrow interpretation of the Gelbman holding (Orphan v. Relyea, 73 Misc.2d 1098, 343 N.Y.S.2d 537; accord: Hairston v. Broadwater, 73 Misc.2d 523, 342 N.Y.S.2d 787; Holodook v. Spencer, 73 Misc.2d 181, 340 N.Y.S.2d 311, Supra).

Another line of cases has rejected counterclaims seeking contribution from the parent for failure to allege facts showing that the parent had a duty to supervise the child (Fake v. Terminal Hardware, 73 Misc.2d 39, 341 N.Y.S.2d 272; Bilgore v. Rennie, 72 Misc.2d 639, 340 N.Y.S.2d 212; Marrero v. Just Cab Corp., 71 Misc.2d 474, 336 N.Y.S.2d 301). In Collazo v. Manhattan & Bronx Surface Tr. Operating Auth., 72 Misc.2d 946, 949, 339 N.Y.S.2d 809, 812, Supra, Mr. Justice Fein questioned whether a child could recover from his parents for injuries resulting from their inadequate supervision, there being no case so holding. However, the lack of authority is explained by the fact that, before Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192, Supra, a child could not sue his parents for nonwillful torts. It has long been recognized that parents, during their children's early years, have a duty to exercise reasonable care to protect them from injury (Mangam v. Brooklyn R.R. Co., 38 N.Y. 455). A failure to perform this duty would...