Opinion
No. 4269.
October 16, 2008.
Order, Supreme Court, Bronx County (Patricia A. Williams, J.), entered July 30, 2007, which, in an action for personal injuries, granted the motions of defendants Washburn and Demauro for summary judgment dismissing the complaint and all cross claims as against them and denied plaintiffs' cross motion for summary judgment, unanimously affirmed, without costs.
Schiavetti, Corgan, DiEdwards Nicholson, LLP, White Plains (Anne Marie Tormay of counsel), for appellants.
Anita Nissan Yehuda, Roslyn Heights, for Morgan Washburn, respondent. Law Office of John P. Humphreys, New York (Eric P. Tosca and Denise L. Thomas of counsel), for Mari Demauro, respondent.
Before: Lippman, P.J., Andrias, Buckley, Sweeny and Renwick, JJ.
Defendant Dominick Madori, a teenager, accidentally shot his teenage companion, plaintiff Andrew Lanzetta, in the eye with a paintball gun that he had left on a prior occasion in their friend defendant Washburn's bedroom closet. The undisputed evidence was that Washburn lacked actual knowledge the paintball gun was there, and there was no evidence as to how long the gun was in the closet so as to charge her with constructive notice of its presence ( see Gordon v American Museum of Natural History, 67 NY2d 836). Although the accident took place in her home during her absence, Washburn's mother, defendant Demauro, was not liable for negligent supervision of her daughter and her daughter's friends, since the accident was unforeseeable in light of her lack of awareness of the presence of the paintball gun ( see Rios v Smith, 95 NY2d 647, 652; LaTorre v Genesee Mgt, 90 NY2d 576, 581-582). Nor was there evidence that Demauro was aware of any dangerous propensities of her daughter's friends ( see Rivers v Murray, 29 AD3d 884).