Cook v Polak

Cook v Polak 2007 NY Slip Op 10328 [46 AD3d 1442] December 21, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

Fred H. Cook et al., Respondents, v John T. Polak, Defendant, and John C. Polak et al., Appellants. (Appeal No. 1.)

—[*1] Kenney Shelton Liptak Nowak LLP, Buffalo (Ryon D. Fleming of counsel), for defendants-appellants.

Flaherty & Shea, Buffalo (Michael J. Flaherty, Jr., of counsel), for plaintiffs-respondents.

Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered November 28, 2006. The order denied the motion of defendants John C. Polak and Barbara A. Polak for summary judgment dismissing the complaint against them.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint against defendants John C. Polak and Barbara A. Polak is dismissed.

Memorandum: The plaintiffs in action No. 1 and the plaintiff in action No. 2 (collectively, plaintiffs) commenced these actions seeking compensation for damage to their property resulting from a fire allegedly caused by defendant John T. Polak, the son of John C. Polak and Barbara A. Polak (collectively, defendant parents). Supreme Court erred in denying the motions of the defendant parents seeking dismissal of the complaints against them. The defendant parents established that, contrary to plaintiffs' allegations, John T. Polak was an adult on the date of the fire. "Inasmuch as [the defendant] parents have no legal right to control their adult child's activities, they cannot be held liable for those activities" (Hartsock v Hartsock, 189 AD2d 993, 994 [1993]; see also Fischer v Lunt, 162 AD2d 1016 [1990]; Mimoun v Bartlett, 162 AD2d 506 [1990]). Present—Scudder, P.J., Gorski, Lunn, Fahey and Green, JJ.