Opinion
October 20, 1998
Appeal from the Supreme Court, New York County (Leland DeGrasse, J.).
We modify as indicated because the infant plaintiff, Alex Lopez, at the age of 2 years — the age at which his lead poisoning was diagnosed — was not yet legally capable of negligence, as alleged against him in the fourth affirmative defense ( see, Galvin v. Cosico, 90 A.D.2d 656, appeal dismissed 58 N.Y.2d 1115). This analysis does not, of course, apply to the infant plaintiff's mother, and the allegations of negligence against her, also in the fourth affirmative defense, sufficiently encompass actionable neglect to withstand plaintiff's' motion for their dismissal.
Summary judgment was properly denied since plaintiff's failed to make out a prima facie entitlement to judgment as a matter of law. The present summary judgment motion was deficient by reason of plaintiff's' failure to establish conclusively that the infant plaintiff suffered injury as the result of defendant's conduct only.
Finally, the branch of plaintiff's' motion seeking amendment of the complaint to add Simon Haberman as a defendant should be granted since the latter appeared personally upon the filing of his answer and this is simply a corrective amendment.
Concur — Nardelli, J. P., Wallach, Tom and Andrias, JJ.