Arciniega v Voelkel

[*1] Arciniega v Voelkel 2006 NY Slip Op 51097(U) [12 Misc 3d 1167(A)] Decided on April 4, 2006 Supreme Court, Suffolk County Werner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 4, 2006
Supreme Court, Suffolk County

Johnny Arciniega, an infant, by his father and guardian, Mario Arciniega and Mario Arciniega, Individually, Plaintiff(s),

against

Karen Voelkel, John Voelkel and John Luizzi, Defendant(s)



2176-05



MARTIN L. GINSBERG, P.C.

Attorneys for Plaintiffs

80-59 Lefferts Boulevard

Kew Gardens, New York 11415

JAMES P. NUNEMAKER, JR. & ASSOCIATES

Attorneys for Defendants Karen Voelkel and John Voelkel Defendant(s)

Post Office Box 9347

Uniondale, New York 11553

RYAN, PERRONE & HARTLEIN, P.C.

Attorneys for Defendant

John Luizzi, Esq.

200 Old Country Road, Suite 300

Mineola, New York 11501

Mary M. Werner, J.

Upon the following papers read on this motion: Notice of Motion and Supporting [*2]Papers 1-9 and Exhibits A-C; Answering Affidavits and Supporting Papers 10-15; Replying Affidavits 16-19; Notice of Cross-Motion and Supporting Papers 20-23 and Exhibits A; Replying Affidavits 24-25; it is

ORDERED that the motion (seq. No.001) of the defendants John Voelkel and Karen Voelkel for an order granting summary judgment in their favor and dismissing the complaint of the plaintiffs is granted and the complaint is dismissed; and it is further

ORDERED that the motion (seq. #

002) of the defendant John Luizzi for an order pursuant to CPLR § 3211 (a) (7) dismissing the complaint of plaintiffs on the grounds that the complaint fails to state a cause of action is granted and the complaint is dismissed.

In this action, infant plaintiff Johnny Arciniega seeks damages for injuries allegedly sustained when he walked behind infant Amanda Voelkel, the daughter of defendants Karen Voelkel and John Voelkel, while she was swinging a baseball bat to hit a pitch during a game of backyard baseball being played during a party held August 24, 2003, on premises owned by defendant John Luizzi. His father sues derivatively. Defendants Karen Voelkel and John Voelkel and their two daughters were guests at the party. The mother of the infant plaintiff is alleged, by affirmation of counsel, to be a co- owner of the property and the fiancée of the defendant John Luizzi. Amanda Voelkel has not been named as a defendant in this action.

Movant parents of Amanda Voelkel submit their affidavits stating that at the time of the incident, Mario Arciniega, Jr. (the brother of the infant plaintiff) had thrown a pitch to their daughter Amanda and while she was swinging at the pitch, Johnny Arciniega walked behind her and was inadvertently struck by the baseball bat. Co-defendant John Luizzi relies upon the affidavits of his co-defendants and cross-moves for dismissal for failure to state a cause of action against him. Plaintiffs' sole submission on these motions is counsel's affirmation in opposition asserting that Amanda was negligent in swinging the bat in a "careless manner" and in circumstances "when she knew or should have known that other children were in the immediate area," and that "adults supervising the game and engaged in a game must take some responsibility for seeing that invited guests, such as the infant plaintiff are safe."

On a motion for summary judgment, the moving party has the burden of making a prima facie showing of entitlement to summary judgment as a matter of law and must offer sufficient evidence to show the absence of material issues of fact. If the moving party fails in meeting this burden, summary judgment must be denied. If, however, this burden is satisfied, then the burden shifts to the opposing party who must establish the existence of material issues of fact requiring a trial (see, Romano v. St. Vincent's Medical Center, 178 AD2d 467, 577 NYS2d 311 [1984]. In order to grant summary judgment it must clearly appear that no material issue of fact has been presented. Hegy v. Coller, 262 AD2d 606, 692 NYS2d 463 (2d Dept [1999]). Summary judgment is a [*3]drastic remedy that will only be awarded when there is no triable issue of fact and the court can render a decision as a matter of law. Barclay v. Denckla, 182 AD2d 658, 582 NYS2d 252 (2d Dept 1992). Conclusory assertions will not suffice to defeat a motion for summary judgment. Barclays Bank of New York v. Sokol, 128 AD2d 492, 512 NYS2d 419 (2d Dept 1987). An attorney's affirmation is without evidentiary value in opposition to a motion for summary judgment, where the attorney has no personal knowledge of the facts. Deronde Products, Inc. v. Steve General Constr., Inc., 302 AD2d 989, 755 NYS2d 152 (4th Dept 2003).

On their motion, defendants Karen Voelkel and John Voelkel have demonstrated their entitlement to summary judgment as a matter of law. "It is well settled that "parental liability for the torts of a child does not arise merely from the parental relationship". Feinerman v. Kaplan, 290 AD2d 480,481; 736 NYS2d 680 (2nd Dep't, 2002) quoting Gordon v. Harris, 86 AD2d 948, 948-949; 448 NYS2d 598 (3rd Dep't, 1982). However, "a parent owes a duty to protect third parties from harm that is clearly foreseeable from the child's improvident use or operation of a dangerous instrument, where such use is found to be subject to the parent's control". Rios v. Smith, 95 NY2d 647, 653; 744 NE2d 1156; 722 NYS2d 220 (2001). However, while the question of "[w]hether a particular object qualifies as a dangerous instrument depends on the nature of the instrument and the facts pertaining to its use, including the particular attributes of the minor using or operating the item" is "often a fact-based determination", the Court of Appeal has held that "items that are commonly used by children, of suitable age in a manner consistent with their intended use, may not, as a matter of law, be classified as dangerous instruments". Id. Here, while plaintiff has not alleged the use of a dangerous instrument (see, Macalena v. Cochrane, 206 AD2d 412, 614 NYS2d 63 [2nd Dep't, 1994]), the Court observes that the sworn statements of movants reveals that the infant plaintiff was struck at a time when Amanda was swinging the baseball bat to hit a pitched ball, a manner consistent with the intended use of a baseball bat. In these circumstances, the Court finds as a matter of law that the baseball bat as used here was not a "dangerous instrument". Rios v. Smith, supra , see, Sorto v. Flores, 241 AD2d 446, 660 NYS2d 60 (2nd Dep't, 1997); see also, Simcha v. Simcha, 292 AD2d 591, 741 NYS2d 245 (2nd Dep't, 2002); Pietrzak v. McGrath, 85 AD2d 720, 445 NYS2d 827 (2nd Dep't, 1981). Moreover, plaintiff's general allegations of negligent supervision are insufficient to raise a triable issue of fact. It is equally well-settled that "[l]iability for negligent supervision does not lie absent a showing that it constitutes a proximate cause of the injury sustained' ". Tanon v. Eppler, 5 AD3d 667, 667-668; 774 NYS2d 718 (2nd Dep't, 2004) citing Lopez v. Freeport Union Free School Dist., 288 AD2d 355, 356, 734 NYS2d 97 (2nd Dep't,2001). "Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury". Convey v. City of Rye School Dist., 271 AD2d 154, 160, 710 NYS2d 641 (2nd Dep't, 2000); see, Cerrato v. Carapella, 22 AD3d 701, 804 NYS2d 402 (2nd Dep't, 2005); Tanon v. Eppler, supra . Accordingly, defendants Karen Voelkel and John Voelkel having met their burden and plaintiffs having failed to raise any triable [*4]issues of fact, summary judgment is granted.

The motion of co-defendant John Luizzi for dismissal of the complaint is granted. "On a motion to dismiss pursuant to CPLR § 3211, a court must accept as true the facts as alleged within the four corners of the complaint and accord the plaintiff the benefit of every possible favorable inference". Konidaris v. Aeneas Capital Mgmt., LP, 8 AD3d 244, 777 NYS2d 666, (2nd Dep't, 2004). "To succeed on a motion to dismiss pursuant to CPLR § 3211 (a)( 1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim". Teitler v. Max J. Pollack & Sons, 288 AD2d 302,733 NYS2d 122 (2nd Dep't, 2001). In addition, under CPLR § 3211 (a)(7) the scope of a court's inquiry on a motion to dismiss is narrowly circumscribed. The court must accept the facts alleged as true and determine simply whether the facts alleged fit within any cognizable legal theory. The court must accept as true not only the complaint's material allegations but also whatever can be reasonably inferred therefrom in favor of the pleader. In ruling on a motion to dismiss, the court is not authorized to assess the merits of the complaint or any of its factual allegations but only to determine if, assuming the truth of the facts alleged, the complaint states elements of a legally cognizable cause of action (P. T. Bank Central Asia v. ABNAmro Bank N.E, 301 AD2d 373,754 NYS2d 245 [2003]). "To succeed on a motion to dismiss pursuant to CPLR § 321 l (a)(7), the evidence must demonstrate that no significant dispute exists as to the facts alleged by the plaintiff'. Dodge v. King, 19 AD3d 359, 796 NYS2d 161 (2nd Dep't, 2005). Here, by the complaint, the infant plaintiff alleges only that he was struck in the head by a baseball bat which had been swung by Amanda Voelkel during a social gathering at the home of the defendant John Luizzi. The Court finds that the sudden movement of plaintiff Johnny Arciniega (who according to his attorney was eight years old at the time of the incident) behind the batter during a baseball game resulted in an accident which occurred "in so short a span of time that even the most intense supervision could not have prevented it" therefore "any lack of supervision is not the proximate cause of the injury". Convey v. City of Rye School Dist., 271 AD2d 154, 160, 710 NYS2d 641 (2nd Dep't, 2000); see, Cerrato v. Carapella, 22 AD3d 701, 804 NYS2d 402 (2nd Dep't, 2005); Tanon v. Eppler, supra . Accordingly, the complaint fails to state a cause of action against the defendant home owner and is dismissed.

Dated:

MARY M. WERNER, J.S.C.