Y.A. v. Conair Corp., 4827N, 152719/12.

• Decision Date: 26 October 2017
• Docket Number: 4827N, 152719/12.
• Citation: 62 N.Y.S.3d 116,154 A.D.3d 611
• Parties: Y.A., an Infant Under the Age of Fourteen Years, by G.A., as Parent and Natural Guardian, Plaintiff–Respondent, v. CONAIR CORPORATION doing business as Cuisinart, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 611

62 N.Y.S.3d 116

Y.A., an Infant Under the Age of Fourteen Years, by G.A., as Parent and Natural Guardian, Plaintiff–Respondent,

v.CONAIR CORPORATION doing business as Cuisinart, et al., Defendants–Appellants.

4827N, 152719/12.

Supreme Court, Appellate Division, First Department, New York.

Oct. 26, 2017.

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Louise M. Cherkis of counsel), for appellants.

Law Office of Certain & Zilberg, PLLC, New York (Michael Zilberg of counsel), for respondent.

TOM, J.P., MANZANET–DANIELS, MAZZARELLI, OING, and SINGH, JJ.

Order, Supreme Court, New York County (Robert D. Kalish, J.), entered July 7, 2016, which denied defendants' CPLR 3025(b) motion to amend their answers to add a counterclaim for negligence, contribution, and/or common law indemnity, unanimously affirmed, without costs.

In 2010, G.A.'s (plaintiff) then 2 ½ year-old son, the infant plaintiff Y.A., was allegedly injured when his hand came into contact with the blades of a hand-held stick blender manufactured by defendant Conair and sold by defendant Bed Bath & Beyond. According to plaintiff's deposition testimony, after purchasing the blender, she opened the box and then left the blender, in its box, on the dining room table while she went to the kitchen to prepare dinner. Meanwhile, Y.A. and G.A.'s four-year-old son, I.A, played in the den, which opened into the dining room. At some point, plaintiff heard a scream and, when she came running into the den, she saw Y.A. holding up his hand, bloodied, with his fingers having been severely cut. Plaintiff saw that the blender was plugged into an outlet and I.A. was holding it, and he eventually admitted that he had taken the blender, plugged it in and pressed the button.

Plaintiff commenced this action, individually and on behalf of her injured son, to recover damages for strict products liability and related claims against defendants. After plaintiff's deposition revealed the circumstances of the accident, defendants moved for leave to amend their answers to assert a counterclaim against her for contribution and indemnification. They argued that the general rule of intrafamilial immunity ( Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338 [1974] ), does not apply when a parent, like plaintiff here, negligently entrusts an instrumentality, which she alleged was unreasonably defective, to a child, thereby creating a risk to third parties (see Nolechek v. Gesuale, 46 N.Y.2d 332, 413 N.Y.S.2d 340, 385 N.E.2d 1268 [1978] ; see also Alessi v. Alessi, 103 A.D.2d 1023, 478 N.Y.S.2d 396 [4th Dept.1984] ; Acquaviva v. Piazzola, 100 A.D.2d 502, 472 N.Y.S.2d 704 [2d Dept.1984], lv. dismissed 62 N.Y.2d 604, 942, 478 N.Y.S.2d 1023, 467 N.E.2d 532 [1984] ). Supreme Court denied the motion and we affirm.

Motions for leave to amend pleadings should be freely granted, absent prejudice or surprise resulting therefrom, unless the proposed amendment is palpably...