J.A. v Christina D.
Annotate this CaseDecided on August 3, 2012
Supreme Court, Bronx County
J.A., as Administrator of the Estate of J.A., Jr., J.A., as father and Natural Guardian of Y.A. and J.A., individually, Plaintiffs,
against
Christina D. and the Estate of Carmelo D., Defendants.
21111/2011E
Attorney for Christina D.: Robert H. Wolff, Esq.
Attorney for Plaintiff: Thomas Culhane, Esq.
Attorney for Carmelo D.: Kaplan, Hanson, McCarthy, Adams, Finder & Fishbein
Alexander W. Hunter Jr., J.
The motion by order to show cause by defendant Christina D. for an order vacating the default judgment entered against her by this court on January 20, 2012, is granted without opposition.
The cause of action is for personal injuries sustained by infant plaintiffs Y.A. and J.A., Jr., and the wrongful death of infant plaintiff J.A., Jr., as a result of a motor vehicle accident which occurred on November 1, 2010 on U.S. Highway 113 also known as the Worchester Highway at its intersection with Langmaid Road in the State of Maryland. Defendant Christina D. is the mother of the infant plaintiffs and decedent Carmelo D. was the owner and operator of the vehicle in which the infant plaintiffs were passengers.
This court previously granted a default judgment against defendant Christina D., in a decision and order dated January 20, 2012 due to her failure to timely answer the summons and verified complaint personally served on her. The verified complaint states causes of action for negligence against defendant Christina D. claiming that she was negligent in her childcare of the infant plaintiffs and failed to properly secure the infant plaintiffs in proper safety seats in the subject vehicle. The motion for default judgment was granted as against her on default. [*2]
Defendant Christina D. now moves to vacate the default judgment entered against her and alleges that this court must recognize that there could have been no affidavit of merit by the moving party because the law is clear that a parent's alleged negligence for failure to supervise a child does not constitute a tort actionable by the child or his/her estate. Defendant cites to the Court of Appeals case, Holodook v. Spencer, 36 NY2d 35 (1974), in support of her contention that there is no viable cause of action against her and that a default judgment should not have been entered against her in the first place. As such, defendant requests that this court use its discretionary authority to vacate the default judgment against her pursuant to C.P.L.R. §5015(a).
Defendant Christina D. submits an affidavit wherein she states that she was neither the operator nor owner of the vehicle and cannot be held accountable on a negligent supervision claim pursuant to public policy and case law.
This court did not receive any papers in opposition to the instant motion.
C.P.L.R. §5015(a), states, "The court which rendered a judgment or order may relieve a
party from it upon such terms as may be just, on motion of any interested person...upon ground of excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party..." To vacate a default judgment, a party must demonstrate a reasonable excuse for the default and the existence of a meritorious claim. Arias v. Sanchez, 227 AD2d 284 (1st Dept. 1996); Parker v. City of New York, 272 AD2d 310 (2nd Dept. 2000).
In exercising its discretion to grant a motion to vacate a default, the court, should consider the extent of the delay and whether or not the opposing party will suffer prejudice. In Orwell Bldg. Corp. v. Bessaha, 5 AD3d 573 (2nd Dept. 2004), the court ruled that, "When exercising its discretion...a court should consider such relevant factors as the extent of the delay, prejudice or lack of prejudice to the opposing party...and lack of willfulness...as well as the strong public policy in favor of resolving cases on the merits..." (citations omitted). Id.
In the case at bar, Christina D. does not provide this court with an excuse for her default other than to state that the court should have denied the motion for a default judgment as a supervision claim cannot be commenced against the parent of child. Additionally, the motion was adjourned on the consent of all parties at least three (3) times and no party submitted any opposition to the instant motion. The instant application was filed less than two (2) months after this court granted the default judgment against defendant Christina D. and there has been no showing of willfulness or prejudice.
The motion to vacate the default is granted. In, Holodook v. Spencer (supra), the Court of Appeals considered the issue of a parent's liability for negligent supervision of his or her child. The case involved appeals on three (3) separate cases. The Court ruled that historically, negligent supervision has not been a tort actionable by the child and stated that, "...the law has in the past interjected itself into the family relation to the limited extent of assuring support and [*3]guidance personally to the child and of providing a remedy in limited circumstances to third persons who are injured by a negligently supervised child." Id. at 45. As such, the Court held that a parent's negligent failure to supervise his child should not be recognized as a tort actionable by the child. Id.
In, Thurel v. Varghese, 207 AD2d 220 (2nd Dept. 1995), a mother held her two-month old infant in her arms while riding as a passenger in the back seat of a car driven by her husband, the father of her child. The vehicle was involved in an accident and the two-month old child was caused to be ejected from his mother's arms and thrown through the car window suffering injuries that resulted in his death. Appellants filed a counterclaim seeking contribution from the infant's mother alleging that the infant's injuries and death were caused or contributed to by the mother's negligence. The court held, "It is true that a child...has a viable cause of action against its parent based on the parent's negligent act which breaches a duty owed to the world at large'...However, where the factual situation gives rise only to a cause of action premised upon negligent supervision, the complaint (or counterclaim) should be dismissed." (citations omitted). Id. at 222-223. The court further went on to state, "...even assuming that the failure to place the infant in a child safety seat constituted a breach of the duty of reasonable care, this was not a duty which the mother owed to the world at large...As a passenger in a vehicle, the mother owed no independent duty- - separate and apart from the family relationship - - to insure that a fellow passenger was restrained in a child safety seat." Id.
Since the motion to vacate the default judgment was unopposed and since Christina D. has demonstrated that a default judgment should not have been entered against her on plaintiff's negligence claims, the motion by Christina D. to vacate the default judgment against her is granted.
Movant is directed to serve a copy of this order with notice of entry upon all parties and file proof thereof with the clerk's office.
This constitutes the decision and order of the court.
Dated: August 3, 2012
J.S.C.
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