McEntee v. Cappucci

Full title: PATRICK E. McENTEE, SR., et al., Plaintiffs, v. JOSEPH CAPPUCCI, et al.…

Court: Civil Court of the City of New York, Kings County

Date published: Apr 30, 1999

183 Misc. 2d 70 (N.Y. Civ. Ct. 1999)

701 N.Y.S.2d 766

Opinion

April 30, 1999

Isabella Natale, New York City, for Joseph Cappucci and another, defendants.

Joseph Cappucci, Jr., defendant pro se.

Mound, Cotton Wollan, New York City (Emilie L. Bakal of counsel), for plaintiffs.

DECISION AND ORDER

LOREN BAILY-SCHIFFMAN, J.

Defendants have brought a motion to dismiss the Fifth and Sixth Causes of Action against defendants Joseph Cappucci and Eileen Cappucci on the ground that the complaint fails to state a cause of action against them. For the following reasons, the motion is denied.

PROCEDURAL HISTORY

This action has its unfortunate beginnings in the violent incident of September 12, 1990 in which Joseph Cappucci, Jr. assaulted Patrick McEntee, Jr. with a baseball bat. On April 22, 1991, Joseph Cappucci, Jr. pleaded guilty to Assault in the 2^nd degree, a Class D felony. On July 25, 1997, the Honorable Maxine Archer entered a default judgment against defendant Joseph Cappucci, Jr. The parents now move to dismiss the Fifth and Sixth Causes of Action pursuant to CPLR § 3211 (a)(7).

The Fifth Cause of Action alleges that Mr. and Mrs. Cappucci had knowledge of their son's vicious and malicious disposition and had knowledge that he habitually assaulted and mistreated others and that despite such knowledge they failed to exercise reasonable and proper control over their son. The Sixth Cause of Action alleges that despite Mr. and Mrs. Cappucci's knowledge of the attack of September 12, 1990 as well as other violent malicious acts, the parents continued to fail to exercise reasonable control over their son.

DISCUSSION

A motion to dismiss pursuant to CPLR § 3211 N YCPLR (a)(7) is successful only when the Complaint fails to state a claim on its face. In this case, the Fifth and Sixth Causes of Action rest on the law of negligent supervision.

Holodook v. Spencer, 36 N.Y.2d 35 (1974) holds that a Cause of Action against a parent premised upon the negligent supervision of their child cannot stand. However, plaintiffs' counsel is correct in asserting that Holodook applies only where the child sues her own parents.

In this case, plaintiffs are relying upon Zuckerberg v. Munzer, 277 AD 1061 (2^nd Dep't 1950), allowing for a case of negligent supervision of a child with known propensity for violent conduct who attacked a person with a baseball bat, and Nolechek v. Gesuale, 46 N.Y.2d 332 (1978), an exception to the general rule against parental liability which allows for claims based on parents owing "a duty to protect third parties from harm resulting from an infant's improvident use of a dangerous instrument, at least, and perhaps especially, when the parent is aware and capable of controlling it's use" Id.

Reasoning that "It matters not that the parent would not be liable to the child in an action for personal injuries; the financial harm suffered by third party results from a legally cognizable breach of duty different in kind from any moral breach of duty to the child" Id., the Nolechek court carved out an exception to the Holodook rule which does not contemplate third parties. See also Passe v. Holiday Inns, Inc., 248 A.D.2d 982 (4^th Dep't 1998); La Torre v. Genesee Management Inc., 228 A.D.2d 995 (3^rd Dep't 1996); Armour v. England, 210 A.D.2d 561 (3^rd Dep't 1994) and Parsons v. Wham-O, Inc., 150 A.D.2d 435 (2^nd Dep't 1989).

Because this case falls well within parental liability envisioned by Nolechek and Zuckerberg, the motion to dismiss is denied.