Opinion
July 12, 1976
Appeal from the Steuben Supreme Court.
Present — Marsh, P.J., Simons, Mahoney, Goldman and Witmer, JJ.
Order unanimously reversed, without costs, and motion to dismiss first cause of action granted. Memorandum: Defendants Howard and Elsie Aumick appeal from so much of an order of Special Term as denied their motion pursuant to CPLR 3211 (subd [a], par 7) to dismiss a cause of action against them based upon a violation of section 130 Lab. of the Labor Law. Defendant Jack Aumick is the 13-year-old son of defendants Howard and Elsie Aumick. He had been hired by defendant Burton to mow the lawn of premises owned by her and occupied by plaintiffs. It was while he was performing this task that the injury to the infant plaintiff occurred. Statutory liability may be imposed upon a person who hires an infant in violation of section 130 Lab. of the Labor Law if the infant is injured (Vincent v Riggi Sons, 30 N.Y.2d 406). It makes no difference whether the infant be viewed as an employee or an independent contractor, or whether the employment is casual or intermittent, as long as the hiring is in connection with a trade or business (cf. Ludwig v Lowe, 29 A.D.2d 267, affd 25 N.Y.2d 853). The wrong, however, is in the hiring and liability may not be imposed upon the parents of the employed infant because they permitted or acquiesced in the hiring of their son by another. Furthermore, the statute does not provide a basis for recovery by a plaintiff other than the employed infant, for the third person is not within the class of persons the statute was designed to protect (see Koenig v Patrick Const. Corp., 298 N.Y. 313; Moyer v Lo Jim Cafe, 19 A.D.2d 523, affd 14 N.Y.2d 792; 1 N.Y. PJI2d 150-155; Restatement, Torts 2d, § 286).