Wheeler v. Bello

CourtUnited States State Supreme Court (New York)
Writing for the CourtLEO F. HAYES
Citation357 N.Y.S.2d 818,78 Misc.2d 540
PartiesJames WHEELER, an infant, and Raymond J. Wheeler, his parent and natural guardian, Plaintiffs, v. David BELLO, an infant, and Dominick Bello, his parent and natural guardian, Defendants.
Decision Date16 July 1974

Page 818

357 N.Y.S.2d 818
78 Misc.2d 540
James WHEELER, an infant, and Raymond J. Wheeler, his parent
and natural guardian, Plaintiffs,
v.
David BELLO, an infant, and Dominick Bello, his parent and
natural guardian, Defendants.
Supreme Court, Onondaga County.
July 16, 1974.

Page 819

Surgarman, Wallace, Manheim & Schoenwald, Syracuse, for plaintiffs.

Hancock, Estabrook, Ryan, Shove & Hust, Syracuse, for defendants.

LEO F. HAYES, Justice.

DECISION

On April 25, 1973, infant plaintiff, James Wheeler, age 12, was allegedly shot in the eye by a BB from an air gun fired by the infant defendant, David Bello, who was at that time 13 years of age. Raymond J. Wheeler, father of the injured infant, James Wheeler, has commenced this action for damages individually and on behalf of his infant son against David Bellow and David's natural guardian, Dominick Bello. The defendants have interposed a counterclaim seeking recovery [78 Misc.2d 541] from Raymond J. Wheeler under the theory of Dole v. Dow

Page 820

Chemical, 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288. Plaintiffs have brought on this motion seeking an order pursuant to § 3211(7) of the CPLR dismissing the counterclaim of the defendants against the plaintiff, Raymond J. Wheeler, contending that the counterclaim does not state a cause of action. Plaintiffs refer to the recent decision of Holodook v. Spencer, 43 A.D.2d 129, 350 N.Y.S.2d 199, claiming that the parent's failure to supervise does not state a cause of action and, therefore, defendants' counterclaim should be dismissed.

From the moving papers a short history of the air gun in question is most important. Defendants allege that the air gun was purchased for the infant plaintiff, James Wheeler, by his father, Raymond J. Wheeler, at Christmas time, 1972, and that it was turned over to and/or given to the infant plaintiff by his father at or about that time, with no restrictions on its use. Defendants further contend that on the 25th day of April, 1973, the infant plaintiff, together with one or more infant companions, were using infant plaintiff's air gun and pellets furnished to him by his father for the purpose of shooting frogs. At some time during that day the gun was handed by the infant plaintiff to the infant defendant and shortly thereafter the infant defendant either intentionally or accidentally fired the air gun in the direction of the infant plaintiff and the pellet entered the infant plaintiff's right eye allegedly causing the damages for which this action was brought.

In reviewing the present status of the law from Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192 up to the present time, it is interesting to note that decisions following Gelbman have abolished the intra-family tort immunity theory in New York State. However, in interpreting the Gelbman decision, the Appellate Division has held in Holodook v. Spencer (supra) that mere lack of supervision by a parent toward his child is not an actionable tort:

'There can be no basis for a claim against the parent by such tort-feasor for contribution based merely on an alleged lack of supervision.' (43 A.D.2d at p. 137, 350 N.Y.S.2d at p. 207.)

The Holodook case involved a four-year old child who was injured when he was struck by an...

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4 practice notes
  • Allstate Ins. Co. v. Reliance Ins. Co.
    • United States
    • United States State Supreme Court (New York)
    • 20 de fevereiro de 1976
    ...to the world at large. See also, Morales v. Moss, 44 A.D.2d 687, 355 N.Y.S.2d 456 (concurring and dissenting opinions); Wheeler v. Bello, 78 Misc.2d 540, 357 N.Y.S.2d Page 929 If under the circumstances Mrs. Cangelosi's conduct was negligent entrustment of a dangerous instrumentality, she w......
  • People v. Howell
    • United States
    • United States State Supreme Court (New York)
    • 19 de julho de 1974
    ...a search as an incident to a lawful arrest. This search of the defendant produced a second weapon which the defendant had on his person. [78 Misc.2d 540] As opposed to the facts in the Whiteley case the arrest and search which followed, in the instant case, were not made on the basis of the......
  • Nolechek v. Gesuale
    • United States
    • New York Supreme Court Appellate Division
    • 25 de julho de 1977
    ...the defendants should therefore not be dismissed (see Goedkoop v. Ward Pavement Corp., 51 A.D.2d 542, 378 N.Y.S.2d 417; Wheeler v. Bello, 78 Misc.2d 540, 357 N.Y.S.2d The third-party complaint, however, should nevertheless be dismissed. The exchange of motorcycles which led to the inclusion......
  • Goedkoop v. Ward Pavement Corp.
    • United States
    • New York Supreme Court Appellate Division
    • 19 de janeiro de 1976
    ...(see, e.g., Holodook v. Spencer, 36 N.Y.2d 35, 50--51, 364 N.Y.S.2d 859, 871, 324 N.E.2d 338, 345, Supra; see, also, Wheeler v. Bello, 78 Misc.2d 540, 357 N.Y.S.2d We additionally note that a determination as to what was the proximate cause of the infant's injuries must await a trial of the......
4 cases
  • Allstate Ins. Co. v. Reliance Ins. Co.
    • United States
    • United States State Supreme Court (New York)
    • 20 de fevereiro de 1976
    ...to the world at large. See also, Morales v. Moss, 44 A.D.2d 687, 355 N.Y.S.2d 456 (concurring and dissenting opinions); Wheeler v. Bello, 78 Misc.2d 540, 357 N.Y.S.2d Page 929 If under the circumstances Mrs. Cangelosi's conduct was negligent entrustment of a dangerous instrumentality, she w......
  • People v. Howell
    • United States
    • United States State Supreme Court (New York)
    • 19 de julho de 1974
    ...a search as an incident to a lawful arrest. This search of the defendant produced a second weapon which the defendant had on his person. [78 Misc.2d 540] As opposed to the facts in the Whiteley case the arrest and search which followed, in the instant case, were not made on the basis of the......
  • Nolechek v. Gesuale
    • United States
    • New York Supreme Court Appellate Division
    • 25 de julho de 1977
    ...the defendants should therefore not be dismissed (see Goedkoop v. Ward Pavement Corp., 51 A.D.2d 542, 378 N.Y.S.2d 417; Wheeler v. Bello, 78 Misc.2d 540, 357 N.Y.S.2d The third-party complaint, however, should nevertheless be dismissed. The exchange of motorcycles which led to the inclusion......
  • Goedkoop v. Ward Pavement Corp.
    • United States
    • New York Supreme Court Appellate Division
    • 19 de janeiro de 1976
    ...(see, e.g., Holodook v. Spencer, 36 N.Y.2d 35, 50--51, 364 N.Y.S.2d 859, 871, 324 N.E.2d 338, 345, Supra; see, also, Wheeler v. Bello, 78 Misc.2d 540, 357 N.Y.S.2d We additionally note that a determination as to what was the proximate cause of the infant's injuries must await a trial of the......

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