Ballard v. Mouzon

266 A.D.2d 490, 698 N.Y.S.2d 910, 1999 N.Y. App. Div. LEXIS 12229

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from so much of an order of the Supreme Court, Queens County (Lisa, J.), dated August 12, 1998, as denied, in part, his application for certain discovery, granted that branch of the plaintiffs’ cross motion which was to dismiss the first and fifth affirmative defenses and the counterclaim, and denied his cross motion to amend his counterclaim.

Ordered that the order is affirmed insofar as appealed from, with costs.

The court properly granted that branch of the plaintiffs cross motion which was to dismiss the first and fifth affirmative defenses and the counterclaim because mere negligent supervision of a child is not actionable (see, Holodook v Spencer, 36 NY2d 35; Navaro v Ieraci, 214 AD2d 713).

The proposed amended counterclaim, in light of the new allegation therein, was properly considered a cross motion for leave to replead pursuant to CPLR 3211 (e), (a) (6). Because the defendant failed to demonstrate a sufficient ground to support the proposed amended counterclaim, the cross motion to amend the counterclaim was properly denied (see, CPLR 3211 [e]; Grinstein v Official Laura Branigan Fan Club, 174 AD2d 545).

The defendant’s remaining contention is not properly before this Court. Ritter, J. P., Joy, Goldstein and McGinity, JJ., concur.