Sherri v. Gerwell

262 A.D.2d 394, 691 N.Y.S.2d 144, 1999 N.Y. App. Div. LEXIS 6316

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Donovan, J.), entered April 2, 1998, which granted the motion of the defendant Nora Gerwell for summary judgment dismissing the complaint insofar as asserted against her, and (2) a judgment of the same court entered April 28, 1998, which is in favor of the defendant Nora Gerwell and against them, dismissing the complaint insofar as asserted against that defendant.

Ordered that the order and the judgment are affirmed, with costs.

The infant defendant Matthew Gerwell gave the keys to an automobile owned by his mother, the defendant Nora Gerwell, to the defendant Dennis Rooney without Nora Gerwell’s knowledge or permission. Rooney then drove the automobile with Matthew Gerwell as a passenger, and then picked up another passenger, Nikoll Sherri, the son of the plaintiff Kole Sherri. The car was involved in an accident in which Sherri was injured.

The plaintiffs allege that Nora Gerwell negligently supervised the then 15-year-old Matthew Gerwell because she placed her car keys in an area accessible to Matthew, who allegedly had a propensity to disobey rules. However, no evidence was submitted to demonstrate that Matthew had a propensity to utilize automobiles without permission, or to steal or borrow items which he was not authorized to use. Due to the absence of evidence of such a propensity, or any other exception to the general rule that parents are not liable for the torts of their children (see, Steinberg v Cauchois, 249 App Div 518), liability does not attach here to the defendant Nora Gerwell.

The plaintiffs’ remaining contentions are without merit. Friedmann, J. P., Krausman, McGinity and Feuerstein, JJ., concur.