Mulcahy v. County of Monroe

78 A.D.2d 1012, 433 N.Y.S.2d 664, 1980 N.Y. App. Div. LEXIS 13796

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1980
• Status: Published

Opinion

Order unanimously reversed, with costs, and plaintiffs motion granted. Memorandum: Plaintiffs bring this action to recover damages occasioned to them when a motorcycle owned and operated by plaintiff Kevin Mulcahy struck a pothole on Congress Street in Rochester, New York. Plaintiff Kevin Mulcahy seeks to recover damages for personal injuries, past and future medical expenses and lost wages and property damage to his motorcycle. His father, plaintiff Robert Mulcahy, seeks to recover damages for loss of services and for medical expenses. Defendant County of Monroe submitted an answer which, among other claims, asserted a counterclaim against the father alleging that he was guilty of concurrent negligence proximately causing the accident because he gave his son the motorcycle, failed properly to teach his son how to operate it and failed properly to supervise his son’s use of the motorcycle. Plaintiff moved for summary judgment and Special Term denied the motion. Notwithstanding the rule that a parent may be responsible to a third person injured by his actions in permitting his child to use a dangerous instrument (see Nolechek v Gesuale, 46 NY2d 332), the present record does not contain any evidence raising a question of fact on that issue and plaintiffs’ motion for summary judgment dismissing the county’s counterclaim is granted. (Appeal from order of Monroe Supreme Court — counterclaim.) Present — Cardamone, J. P., Simons, Schnepp, Doerr and Witmer, JJ.