O.S. v E.M.

[*1] O.S. v E.M. 2006 NY Slip Op 50321(U) [11 Misc 3d 1060(A)] Decided on February 2, 2006 Supreme Court, Bronx County Roman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 2, 2006
Supreme Court, Bronx County

O.S., AN INFANT OVER THE AGE OF 14 YEARS, BY HIS FATHER AND NATURAL GUARDIAN, A. S., AND A. S., INDIVIDUALLY, Plaintiff(s),

against

E.M., AN INFANT OVER THE AGE OF 14 YEARS, BY HIS FATHER AND NATURAL GUARDIAN "JOHN" M. (WHOSE FIRST NAME IS FICTITIOUS AND UNKNOWN) AND "JOHN" M., INDIVIDUALLY, Defendant(s).



8921/05

Nelson S. Roman, J.

Defendants move seeking an order pursuant to CPLR §3211(a)(7) dismissing plaintiff's complaint against "JOHN" (John). Defendants assert that the complaint should be dismissed because the complaint fails to state a cause of action. Plaintiffs oppose the instant motion asserting that the causes of action are actionable and properly pled.

For the reasons that follow herein after, defendants' motion is hereby granted.

The complaint herein alleges five cause of action. The first cause of action alleges that John, is the parent and natural guardian of E. M. (Plaintiff's complaint ¶4). On March 12, 2004, at approximately 9PM, plaintiff O. S., was in the vicinity of 5654 Riverdale Avenue, Bronx, NY, when E. M. and others struck him, knocking him to the ground, causing injury. (¶¶6-9). It is alleged that E. M. behaved in a reckless and negligent manner. (¶10). The second cause of action is against John and alleges that John was negligent in failing to supervise E. M. (¶20). The third and fourth causes of action are against E. M. and they allege that E. M. acted intentionally, willfully and in reckless or callous disregard for O. S. (¶¶26 and 36). The fifth cause of action is a derivative claim on behalf of plaintiff A. S., where it is alleged that he has been deprived of O. S.'s love, felicity, companionship, and services. (¶¶38-39).

Motion to Dismiss the Standard

When deciding a motion to dismiss a plaintiff's complaint pursuant to CPLR §3211, the Court must take all the allegations within the complaint as true. Sokoloffv. Harriman Estates Development Corp., 96 NY2d 409 (2001); Cron v. Hargro Fabrics, Inc., 91 NY2d 362 (1998). All reasonable inferences which can be drawn from the complaint and the allegations therein stated shall be resolved in favor of the plaintiff. Id. In opposition to such a motion a plaintiff may submit [*2]affidavits to remedy defects in the complaint. Id. If an affidavit is submitted for that purpose, it shall be given its most favorable intendment. Id. The Court's role when analyzing the complaint in the context of a motion to dismiss, is to determine whether the facts as alleged fit within any cognizable legal theory. Sokoloffv. Harriman Estates Development Corp., 96 NY2d 409 (2001). In fact, the law mandates that the Court's inquiry be not limited to deciding whether plaintiff has pled the cause of action intended. Leon v. Martinez, 84 NY2d 83 (1994). Instead, the Court must determine whether the plaintiff has pled any cognizable cause of action. Id. "[T]he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." Id. at 88. As Judge Cook in Guggenheimer v. Ginzburg, stated

Initially, the sole criterion is whether the pleading states a cause of action, and from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion to dismiss will fail***When evidentiary material is considered the criterion is whether the proponent of the pleading has a cause of action not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not fact at all and unless it can be said that no significant dispute exists regarding it again dismissal should not eventuate.

Guggenheimer v. Ginzburg, 43 NY2d 268, 275 (1977).

Thus, on a motion to dismiss, particularly where it is alleged that plaintiff has failed to state a cause of action (CPLR §3211[a][7]), the Court must examine the pleadings against the backdrop of cognizable causes of action. If it appears that the plaintiff has no cognizable cause of action either because plaintiff has failed to articulate facts amounting to a cause of action or because the law bars such an action based on the factual circumstances wherein the cause action arose, the Court must dismiss the cause of action.

Parental Liability

A parent's negligent failure to supervise a child is not a recognized tort, actionable by the child. Holodook v. Spencer, 36 NY2d 35 (1974). Consequently, any cause action by a third party premised on a parent's negligent supervision of a child is similarly barred and not actionable. Id. However, there are two exceptions to this well supported rule. A third party harmed by a child's action does have a cause of action against said child's parent when the harm results from the child's improvident use of a dangerous instrument, when the parent is aware of and capable of controlling its use. Noechek v. Gesuale, 46 NY2d 332 (1978). Similarly, a third party harmed b y a child has a cause of action against said child's parent when the child has a tendency to engage in vicious conduct and the child's parent is aware of such propensities. LaTorre v. Genesee Management, Inc., 90 NY2d 576 (1997); Feinerman v. Kaplan, 290 AD2d 480 (2nd Dept. 2002); Brahm v. Hatch, 203 AD2d 640 3rd Dept. 1994). In order to be actionable, a claim pursuant to this second exception, must be "pleaded with some reasonable specificity, beyond mere generalities." LaTorre v. Genesee Management, Inc., 90 NY2d 584, 576 (1997).

Discussion [*3]

Clearly the cause of action against John, cause of action two, is for his failure to supervise E. M. This is the very kind of action prohibited by law and as such the cause of action must fail. While plaintiffs, in opposition to the motion, assert that further discovery will demonstrate that E. M. had vicious propensities known to John, such argument is unavailing. At issue is whether, the complaint as drafted states a cognizable cause of action. The Court finds that it does not. If indeed plaintiffs had any indication that there existed circumstances which would bring this action under one of the cognizable exceptions, i.e., vicious propensities, they should have pled the same or at the very least submitted an affidavit to remedy the defective pleading. Inasmuch as the pleadings are devoid of any of the aforementioned allegations and plaintiff have failed to remedy such shortcomings, plaintiffs have failed to state a cause of action and the complaint as to John must be dismissed. It is hereby

ORDERED that plaintiffs' complaint as to John be hereby dismissed with prejudice.

Defendants are directed to serve a copy of this Order with Notice of Entry upon plaintiffs within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Dated : February 2, 2006

Bronx, New York

______________________________ Nelson S. Roman, J.S.C.