Christopher M. v. Pyle

34 A.D.3d 1286, 823 N.Y.S.2d 728

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 2006
• Docket: Appeal No. 1
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), entered November 9, 2005 in a personal injury action. The order, among other things, denied plaintiffs cross motion seeking dismissal of various affirmative defenses.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting that part of the cross motion seeking dismissal of the affirmative defenses alleging negligent supervision by plaintiff’s mother and dismissing the first, seventh and ninth affirmative defenses and that part of the sixth affirmative defense alleging negligent supervision by plaintiffs mother and as modified the order is affirmed without costs.

Memorandum: Plaintiff, by his mother, commenced this action seeking damages for injuries he allegedly sustained as a result of exposure to lead paint in premises owned by defendant, where plaintiff resided. We agree with plaintiff that Supreme Court erred in denying that part of his cross motion seeking dismissal of the affirmative defenses alleging negligent supervision by his mother, i.e., that she negligently caused or failed to prevent plaintiffs exposure to lead paint (see Ward v Bianco, 16 AD3d 1155, 1156 [2005]; see generally LaTorre v Genesee Mgt, 90 NY2d 576, 579 [1997]), and we therefore modify the order accordingly. We have reviewed plaintiffs remaining contention and conclude that it is without merit. Present—Scudder, J.E, Martoche, Centra and Pine, JJ.