Brand v Toussaint

[*1] Brand v Toussaint 2009 NY Slip Op 51929(U) [24 Misc 3d 1249(A)] Decided on September 14, 2009 Civil Court Of The City Of New York, Kings County Edwards, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 14, 2009
Civil Court of the City of New York, Kings County

Joseph E. Brand, Claimant,

against

Elizabeth Toussaint, Defendant.



3444/09

Genine D. Edwards, J.

In this small claims action, claimant is suing the defendant due to property damage sustained to his vehicle. The credible evidence revealed that the defendant's son and his friends were throwing stones at claimant's vehicle, resulting in a cracked window shield and a scratched bumper. Although two of the boys' parents agreed to pay for the damage, payment never transpired. Claimant had his window shield repaired the next day, in order that he may return to an out-of-state college.

The prevailing case law holds that a parent is not responsible for property damage caused by a child simply based upon parentage. See Rivers v. Murray, 29 AD3d 884, 815 NYS2d 708 (2d Dept. 2006); Fertitta v. Pagano, 299 AD2d 518, 754 NYS2d 21 (2d Dept. 2002), appeal dismissed, 100 NY2d 614, 767 NYS2d 396 (2003); DeRosa v. Smith, 286 AD2d 363, 729 NYS2d 191 (2d Dept. 2001); Lanzetta v. Madori, 55 AD3d 376, 867 NYS2d 43 (1st Dept. 2008); Clark C.B. v. Fuller, 59 AD3d 1030, 872 NYS2d 781 (4th Dept. 2009); Armour v. England, 210 AD2d 561, 619 NYS2d 807 (3d Dept. 1994); Shaw v. Roth, 54 Misc 2d 418, 282 NYS2d 844 (Sup. Ct. Monroe County 1967); Linder v. Bidner, 50 Misc 2d 320, 270 NYS2d 427 (Sup. Ct. Queens County 1966); Littenberg v. McNamara, 136 NYS2d 178 (Sup. Ct. Bronx County 1954); Owens v. Ivey, 138 Misc 2d 671, 525 NYS2d 508 (City Ct. Rochester County 1988); Izzo v. Gratton, 86 Misc 2d 233, 383

NYS2d 523 (City Ct. Albany County 1976): Leonard v. O'Neil, 159 Misc 2d 1029, 608 NYS2d 618 (Justice Ct. Saratoga County 1994); Frellesen v. Colburn, 156 Misc. 254, 281 N.Y.S. 471 (County Ct. Tioga County 1935). Although there are exceptions to this rule, including a codified law, those exceptions and statute do not apply to the facts of this case because there was absolutely no evidence of the defendant's son's propensity to cause injury to person or property.

Accordingly, claimant's case is dismissed.

This constitutes the decision and order of the Court.

Dated: September 14, 2009__________________________

Genine D. Edwards

Judge of Civil Court