Graney v. Graney

43 A.D.2d 207, 350 N.Y.S.2d 207, 1973 N.Y. App. Div. LEXIS 2892

Opinions

Greenbluott, J.

This is an appeal from an order of the Supreme Court at Special Term, entered December 26, 1972 in Albany County, which granted defendant’s motion to dismiss the complaint.

The plaintiff and defendant are, respectively, a child and his parent. The pertinent facts are sufficiently set forth in the dissenting opinion of Mr. Justice Staley. In our view, the determinative issue is the same as was presented in Holodook v. Spencer (43 A D 2d 129 [decided herewith]) and requires the same conclusion. That issue is hot, as indicated by Mr. Justice Staley, whether Gelbman v. Gelbman (23 N Y 2d 434) abolished the defense of intrafamily immunity for nonwillful torts.. We agree that that question would require an answer in the affirmative, and do not agree with Special Term that Gelbman is limited to situations where there is insurance. However, here, as in Holodook, conceding that no immunity defense could be asserted, the question is whether the plaintiff has alleged facts which even under the most liberal interpretation state a cause of action in the first instance. As we have today held in Holodook, such a cause of action has never been held to exist and does not exist under New York law as interpreted by the Court of Appeals or any of the four Appellate Divisions. Therefore, the order must be affirmed.

The order should be affirmed, without costs,