DeRider v. Haines

168 A.D.2d 1005, 564 N.Y.S.2d 945, 1990 N.Y. App. Div. LEXIS 16612

Opinion

Order unanimously affirmed with costs. Memorandum: The court properly denied defendant’s motion to amend the answer to assert a counterclaim for contribution against the father of the infant plaintiff. The undisputed facts submitted on the motion to amend show that defendant’s cause of action against the father, based on negligent supervision of the infant plaintiff, lacks merit (see, Holodook v Spencer, 36 NY2d 35). This case does not fall within the exception to the rule set forth in Holodook (supra) because the bicycle operated by the infant was not a dangerous instrument (see, Nolechek v Gesuale, 46 NY2d 332; Steinberg v Cauchois, 249 App Div 518; see also, Parsons v Wham-O, Inc., 150 AD2d 435; Young v Dalidowicz, 92 AD2d 242). (Appeal from order of Supreme Court, Monroe County, Wesley, J. — amended answer.) Present — Doerr, J. P., Denman, Boomer, Green and Pine, JJ.