Summary
indicating that child could not hold her custodial parent liable for abduction, and remarking that "cause of action for abduction belongs solely to a parent"
Summary of this case from Pittman v. GraysonOpinion
December 6, 1990
Appeal from the Supreme Court, New York County (David B. Saxe, J.).
Plaintiff's action concerns an incident which occurred on September 2, 1982 in Milburn, New Jersey, in which the plaintiff's mother and a private investigator allegedly attempted to take the 12-year-old plaintiff back to New York. At the time, the defendant, an attorney, was representing plaintiff's mother in her divorce action and in proceedings to obtain a temporary restraining order enjoining plaintiff's father from removing the children from New York. On February 13, 1989, plaintiff commenced an action alleging various causes of action in tort against defendant based upon the fact that defendant allegedly advised plaintiff's mother to take the aforementioned actions.
The court properly dismissed plaintiff's causes of action against defendant pursuant to CPLR 3211 (a) (7). No cause of action existed on a theory of negligence since there was no privity between defendant and plaintiff (Michalic v. Klat, 128 A.D.2d 505). With regard to the alleged intentional torts, defendant could not be liable for abduction since a cause of action for abduction belongs solely to a parent (McGrady v. Rosenbaum, 62 Misc.2d 182, affd. 37 A.D.2d 917). Nor may plaintiff's mother, as a custodial parent, be liable for abduction (McGrady v. Rosenbaum, supra). Although New York recognizes an action against a parent for assault, defendant was not liable for the acts committed solely by plaintiff's mother and the private investigator under a theory of "aiding and abetting" since defendant committed no overt act in furtherance of the alleged assault (Steinberg v. Goldstein, 51 Misc.2d 825, affd. 27 A.D.2d 955). In addition, the court properly concluded that plaintiff's proposed amendments to the complaint substituting kidnapping, attempted kidnapping and false arrest for abduction did not present meritorious causes of action.
We find that the IAS court acted within its discretion in denying defendant an award of costs, sanctions and attorneys' fees.
Concur — Sullivan, J.P., Milonas, Rosenberger, Ellerin and Rubin, JJ.