Massapequa Free School District No. 23 v. Regan

63 A.D.2d 727, 405 N.Y.S.2d 308, 1978 N.Y. App. Div. LEXIS 11657

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 1978
• Status: Published

Opinion

In an action to recover for property damage, plaintiff appeals from so much of an order of the Supreme Court, Nassau County, dated December 5, 1977, as granted the branch of the motion of defendants George and Marcia Murray which sought summary judgment as to the fourth cause of action. Order affirmed insofar as appealed from, with $50 costs and disbursements. In Steinberg v Cauchois (249 App Div 518, 519) this court, with regard to parental liability for the tort of a child, stated: "There are situations in which the parent may be held liable * * * (4) where the parent’s negligence consists entirely of his failure reasonably to restrain the child from vicious conduct imperilling others, when the parent has knowledge of the child’s propensity toward such conduct”. Plaintiff’s fourth cause of action is based upon that statement. In our view, the fourth cause of action was properly dismissed. Plaintiff failed to show that there are any issues of fact as to whether respondents knew that their son had a propensity toward "vicious conduct imperilling others”. Plaintiff merely asserted that it will attempt to prove such a propensity, and that assertion under the circumstances here, was insufficient to defeat the motion for summary judgment as to the fourth cause of action. Martuscello, J. P., Shapiro, Cohalan and Margett, JJ., concur.