Opinion
2019–03572 Index No. 11203/14
05-13-2020
Victor MARTINEZ, etc., Plaintiff Third-Party Defendant-Appellant, v. KAZ USA, INCORPORATED, et al., Defendants Third-Party Plaintiffs-Respondents; Michelle Martinez, etc., Third-Party Defendant-Appellant.
Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, N.Y. (Louis B. Gerber of counsel), for plaintiff third-party defendant-appellant. Rivkin Radler LLP, Uniondale, N.Y. (Cheryl F. Korman and Merril S. Biscone of counsel), for defendants third-party plaintiffs-respondents. Raimond & Wong, LLC, New York, N.Y. (Timothy J. Staines of counsel), for third-party defendant-appellant.
Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, N.Y. (Louis B. Gerber of counsel), for plaintiff third-party defendant-appellant.
Rivkin Radler LLP, Uniondale, N.Y. (Cheryl F. Korman and Merril S. Biscone of counsel), for defendants third-party plaintiffs-respondents.
Raimond & Wong, LLC, New York, N.Y. (Timothy J. Staines of counsel), for third-party defendant-appellant.
MARK C. DILLON, J.P., COLLEEN D. DUFFY, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
ORDERED that the order is reversed, on the law, with one bill of costs, and the separate motions of the plaintiff third-party defendant and the third-party defendant for summary judgment dismissing the third-party complaint insofar as asserted against each of them are granted.
In March 2014, the then–10–month–old infant plaintiff allegedly was injured when she knocked over a humidifier and hot water spilled onto her foot. The infant's father had placed the humidifier on the living room floor before leaving the apartment with the infant's five-year-old sibling. The infant's mother was in the living room when the accident occurred. In August 2014, this action to recover damages for the infant's injuries was commenced against the defendants, which allegedly manufactured and sold the humidifier. In December 2015, the defendants commenced a third-party action against the parents for contribution. Following the completion of discovery, the parents separately moved for summary judgment dismissing the third-party complaint insofar as asserted against each of them on the ground that it failed to state a cause of action. In an order dated January 31, 2019, the Supreme Court denied the motions. We reverse.
There is no legally cognizable cause of action to recover damages for injuries suffered by a minor child against his or her parent for negligent supervision (see Rios v. Smith , 95 N.Y.2d 647, 651, 722 N.Y.S.2d 220, 744 N.E.2d 1156 ; LaTorre v. Genesee Mgt. , 90 N.Y.2d 576, 579, 665 N.Y.S.2d 1, 687 N.E.2d 1284 ; Lafia v Baldwin Summer Program Assn., Inc. , 77 A.D.3d 711, 712, 908 N.Y.S.2d 609 ; Wheeler v. Sears Roebuck & Co. , 37 A.D.3d 710, 711, 831 N.Y.S.2d 427 ; see also General Obligations Law § 3–111 ). Additionally, where a secondary right of contribution is dependent upon "the parent's alleged failure to perform a duty owing to the plaintiff child, the absence of the primary cause of action defeats the ... third-party complaint" ( Holodook v. Spencer , 36 N.Y.2d 35, 51, 364 N.Y.S.2d 859, 324 N.E.2d 338 ; see Thurel v. Varghese , 207 A.D.2d 220, 621 N.Y.S.2d 633 ). Although there is an exception when the parent's conduct implicates a duty owed to the public at large (see Siragusa v. Conair Corp. , 153 A.D.3d 1376, 1377, 61 N.Y.S.3d 313 ; Maldonado v. Newport Gardens, Inc. , 91 A.D.3d 731, 732, 937 N.Y.S.2d 260 ), the acts complained of in the third-party complaint were encompassed within the intrafamily immunity for negligent supervision (see McNamara v. Banney , 249 A.D.2d 950, 951, 672 N.Y.S.2d 569 ; see also Zikely v. Zikely , 98 A.D.2d 815, 470 N.Y.S.2d 33, affd 62 N.Y.2d 907, 479 N.Y.S.2d 8, 467 N.E.2d 892 ). Accordingly, the Supreme Court should have granted the parents' separate motions for summary judgment dismissing the third-party complaint insofar as asserted against each of them.
DILLON, J.P., DUFFY, BARROS and CONNOLLY, JJ., concur.