ny judge: tricycle riding 4 year-old can be sued for allegedly hitting, killing 87 year-old

8/8/2019 NY Judge: Tricycle Riding 4 Year-Old Can be Sued for Allegedly Hitting, Killing 87 Year-Old

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SUPREME COURT OF THE STATE OF NEW YORK - EW YORK COUNTY

Notice of Motlon lOrder to Show Cause- ffidavlts - xhlblts ...Answering A ffldavlts- xhibits (Memo)

PRESENT: HON. PAUL WOOTENJustice

PAPFRS NUMBEREDI2

PART 7DOUGLAS D. MENAGH, as Executor of theEstate of CLAIRE MENAGH, deceased, I

Plalntlff, INDEX NO. 107a56IOa

Replying Affidavits (Reply Memo) 1 3

Cross-Motion: n Y e s NoIn this action for p erson al injury, plaintiff alleges that the infant defendan ts, who were

racing bicycles on a sidewalk while under the supe rvision of their parent de fendants, struck theplaintiff with their bicycles, causing severe injuries to the elderly plaintiff Claire Menagh. Th einfant defendant Juliet Breitman, sued herein as Juliette Breitman, seek s in this p re-answermotion to dismiss plaintiffs complaint, as against her only, based upon documentary evidenceand upon failure to state a cause of action, pursuant to CPLR 5 321 (a ) ( l ) & (7). Defendant-movant ha s attached h er birth certificate as an e xhibit to he r motion papers. The sole issuebefore the Court is whether an infant aged four years, nine m onths, is non sui jur is, incapable ofnegligence as a m atter of law, under the facts presented.

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CPLR 321 l ( a ) Motion to Dismis s StandardsCPLR 32 1I a) provides:

(a) Motion to dismiss cause of action. A party m ay move for judgmentdismissing one or m ore causes of action asserted against him on theground that:1. A defense is founded on documentary evidence; , . . /,7. the pleading fails to state a cause of action[.]

Pursuant to CPLR 321 1 a) (I) , in order to prevail on a m otion to dismiss based ondocumentary evidence, the documents relied upon m ust definitively dispose of plaintiWs claim(Bronxville Knolls v Webster Town Ctr. Pshp., 221 AD2d 248 ( I Dept. 1995); Juliano vMcEntee, 150 AD2 d 52 4 [2d Dept 19891; Demas v 325W. End Ave. Corp., 127 AD2d 476 [ I Dept 19861). A CPLR 321 ( a ) (l ) motion may be appropriately gran ted only where thedocumen tary evidence utterly refutes p laintiffs factual allegations, con clusively establishing adefense as a matter of law (Goshen v Mut. Life Ins. Co ., 98 N Y2d 314, 326-27 [2002])

Upon a 321 1 a)(7) motion to dismiss for failure to state a cause of action, the questionfor us is whether the requisite allegations of any valid cause of action cognizable by the statecourts can be fairly gath ered from al l the averments (Foley v DAgostino, 21 AD2d 60, 65 [ I a tDep t. 19641, quoting Condon v Associated Hosp. Sew., 287 NY 41 1, 414 [1942]). In order todefeat a pre-answer mo tion to dismiss pursuant to CPLR 3 21 1, the oppo sing party nee d onlyassert facts of an evidentiary nature which fit within any cognizable legal theory. (Bonnie & Co.Fashions, lnc. v. Bankers Trust Co., 262 A.D.2d 188 [It Dept. 19991.)

When determining a CP LR 321 1 a) motion, we liberally construe the complaint andaccept as true the facts alleged in the complaint and any subm issions in opposition to thedismissal motion (571 W. 232nd Owners Corp. v. Jennifer Realty Co. 98 NY2d 144, 151 1 52[2002]; Leon v Martinez, 84 NY2d 83, 87, [1994]; Sokoloff v Harriman Estates Dev. Corp., 96NY2d 409, [2001]; Wieder v Skala, 80 NY2d 628, [1992]). W e also accord plaintiffs the benefitof every possible favorable inferenc e (511W. 232nd Owners Corp. 98 NY2d at 152; Sokoloff

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v Harriman Estates Dev. Corp, 96 NY2 d at 414).Non Sul Juris

Defendant-movant correctly notes that infants under the age of four are conclusivelypresumed incapable of negligence (Vsrni v Johnson, 295 NY 436, 438 [1946]). Defendant-movant Juliet Breitm an, however, was o ver the ag e of four at the time of the sub ject incident.

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For infants above the age o f four, there is no b right line rule, and in considering theconduct of an infant in relation to other persons or their property, the infant should be held to astandard of care . . . by what is expected of a reasonably prudent child of that age, e xperience,intelligence and degree of developmen t and capa city (Gonzalez v Medina, 69 AD2d 1 4, 18 [IttDept. 19791, citing Camardo v. New York State Rys. 247 N.Y. 111 [1928]; see also Steeves vCity of Rochester, 293 NY 727, 731 [I9441 [The general rule is that a child is not guilty ofcontributory negligen ce if it has exercised the care which may reasona bly be expected of a childof similar age and ca pacity.]; Weidenfeld v Surface Transp. Corp. of N. Y.,269 AD 341 345[1 ept 19451; McLoughin v Bonpark Realty Corp. 260 AD 471 [I a tDept. 19401; Redrnond vCity of New York, 81 AD2d 908, 909 [2d Dept. 19811, aRd 55 NY2d 796 [1981]; Eagle v Janoff,12 AD2d 63 8, 63 9 [Zd Dept. 19601; Yun Jeong Ko o v St. Bernard, 89 Misc 2d 775, 779 [Sup Ct,Queens County 19771).

If conflicting inferences may be drawn, the que stion is one of fact; if only one inferencecan be drawn the question is one of law (Carnardo,247 N Y at 116 [1928]; accord Steeves, 23 9NY at 731-32; see also Weidenfeld, 269 AD at 345; Republic Ins. Co. v Michel, 885 F Supp426, 432-34 [ED NY 19951 [applying New Yo rk S tate Law, an infant aged four ye ars, fourmonths was not automatically non sui jur is, but could be found non sui jur is upon thepresentation of substantial evidence regarding the childs lack of intelligence an d m aturity]; cf.Boyd v Trent, 297 AD2 d 3 01 [2d Dept. 20021 [held, without preliminary discussion, that fouryear old infant was non suijuris for contributing to accident by distracting parent from driving,

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I ,--- , , , . e--

presumably because Second Depa rtment did not believe the four year old cou ld appreciate thedanger of distracting its parent]).

This method of analysis has resulted in ostensibly conflicting case law, in which childrenless than a month apart in age are treated differently as to suijur is status. For example, a childaged four years, ten mon ths who is hit by a car while crossing the street at his mo thers

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direction is no n sui juris as a matter of law (Ehrlich v Marra, 32 A.D.2d 638 [2d Dept. 19691).On the other han d, an unsupervised child of the same ag e who is struck by a car will not beheld non sui jur is as a matter of law, absent evidence that the child is otherwise una ble tocomprehend the danger po sed by an approaching ve hicle ( 8 ,s .Carnardo, 247 NY at 111, YunJeong KOO, 9 Misc 2d at 775).

According to defendant-movant, supervision is the distinguishing factor between thesecases. The Court disagrees. A parents presence alone does not give a reasonab le child carteblanche to engag e in risky behavior such as running across a street. A reasonably prudentchild, whom we may presu me ha s been told repeatedly by the age of four to look both waysbefore crossing a street, knows that running across a street is dange rous even if there is aparent nearby. Desp ite this, if a parent or other trusted adult actively directs a four year oldchild to cross a street at a ceoain time, the only logical inference is that the child will reasonablybelieve it is safe to cross the street at that time. Because a child above the ag e of four will onlybe non suijuris if it is impossible un der the circumstances to draw any other inference, parentalsupervision is un likely to affect the sui uris status of a child above the age of four unless theparent has taken an a ctive role in encou raging the ch ilds conduct (see Carnardo, 24 7 NY at

See Yun Jeong Koo, 89 M isc 2d at 779 (noting that the Carnardo decision would be more rationalnow that, in thls m odern day of enlightenment, children are prone to view television programs w hich, byvoice and sight exemp lification, polnt ou t to youngsters of very ea rly age the necessity of their looking andlistening to avoid danger or dangerous conditions.),

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...

11I).Defendan t-movants reliance on Rornanchuk v County of Westchester (40 .D.2d 877

[2d Dept. 1972]), o establish that a child days shy of the age of five can be held non suijur is asa matter of law, is therefore m isplaced. In that case , the child was actively placed onto a sledand push ed down a slope by his father, w hereupon the sled was allegedly struck by a vehicle.The Rornanchuk child was declared not to be contributorily negligent as a ma tter of law, notbecause of his age or becaus e of a mere parental presence, but because the only logicalinference was that the child reasonably believed that allowing his father to push him on a sledwas a safe course of action.

Applying the Camardo conflicting inferences rule and reasonable child standa rd to thefacts p resented here, defendant-movant cannot be held non sui jur is as a m atter of law. Themotion papers an d pleadings, do not indicate that defend ant-movants mother had any activerole in the allege d incident, only that the m other was supervising, a term that is too vagu e tohold meaning here. There are no exhibits containing evidence as to the defend ant-movantslack of intelligence or maturity, nor are there any other mitigating factors apparent in the recordthat would indicate that another child of similar age and ca pacity under the circumstances couldnot have reasonably appreciated the d anger of riding a bicycle into an elderly woman.

Furthermore, even if defendant-mov ant had alleged facts w hich, if true, might constrainthe Court to a single inference, al l facts must be viewed in a light most favorable to plaintiff (seesupra; 511 W. 232nd Owners Corp., 98 NY 2d at 152; Sokoloff v Harriman Estates Dev. Corp,96 NY2d at 414) . Merely introducing such allegations would therefore still be insufficient.Rather, defendant-movant had the burden of conclusively establishing such allegations.

Becaus e defendan t-movant has utterly failed to allege, let alone es tablish, factsconstraining th e Court to a single inference, de fendant-movan ts suijur is status is a m atter of .fact for a jury, and this motion to dismiss must be denied.

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ORDERED, that the m otion to dismiss by defendant Ju liet Breitma n is denied; and it isfurther,

ORDERED that counse l are directed to appear fo r a preliminary conference in Room/,320, 80 Centre Street, on December 8, 2010 , at 1 1 : O O A.M.; and it is further

ORD ERED that the p laintiff shall serve a copy of this order with notice of entry upon allparties.

PAUL WOOTEN J.S.C.

Check one: r] FINAL DISPOSITION NON-FINAL DISPOSITIONCheck If appropriate: : 17 DO NOT POST 0 EFERENCE

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ny judge: tricycle riding 4 year-old can be sued for allegedly hitting, killing 87 year-old

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