Wallace v. Pacelli

Appellate Division of the Supreme Court of New York

Wallace v. Pacelli

221 A.D.2d 778, 633 N.Y.S.2d 241, 1995 N.Y. App. Div. LEXIS 11766

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 16, 1995

StatusPublished

Cited by3 cases

This text of 221 A.D.2d 778 (Wallace v. Pacelli) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wallace v. Pacelli, 221 A.D.2d 778, 633 N.Y.S.2d 241, 1995 N.Y. App. Div. LEXIS 11766 (N.Y. Ct. App. 1995).

Pincite

Opinion

—Yesawich Jr., J.

Appeal from an order of the Supreme Court (Lynch, J.), entered October 18, 1994 in Schenectady County, which denied defendants’ motion to amend their answer to add a counterclaim.

Decedent, Jonathan A. Wallace, three years of age, was fatally injured when struck by defendants’ automobile. When the accident occurred the infant was chasing a ball into the cul-de-sac by his home. Plaintiffs, decedent’s parents, who were in the immediate vicinity at the time of the accident, commenced this action for their son’s wrongful death and for the pain and suffering endured by plaintiff Laurie J. Wallace, decedent’s mother, who assertedly was in the zone of danger. Defendants moved to amend their answer to add a counterclaim charging that plaintiffs’ negligence was the primary cause of the accident; their claimed negligence is that they did not keep decedent from playing in the street. Defendants appeal the denial of their motion. We affirm.

[779]*779The gravamen of the counterclaim is negligent parental supervision of a child, which is not actionable (see, Holodook v Spencer, 36 NY2d 35, 48; Hlavinka v Slovak Sky Bungalow Colony, 203 AD2d 855). Defendants’ contrary view notwithstanding, a breach of no duty, apart from that stemming from the family relationship, has been alleged (see, Barocas v Woolworth Co., 207 AD2d 145; Walden v Rensselaer Polytechnic Inst, 116 AD2d 963).

Cardona, P. J., White, Casey and Spain, JJ., concur. Ordered that the order is affirmed, with costs.

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—Yesawich Jr., J.

Appeal from an order of the Supreme Court (Lynch, J.), entered October 18, 1994 in Schenectady County, which denied defendants’ motion to amend their answer to add a counterclaim.

Decedent, Jonathan A. Wallace, three years of age, was fatally injured when struck by defendants’ automobile. When the accident occurred the infant was chasing a ball into the cul-de-sac by his home. Plaintiffs, decedent’s parents, who were in the immediate vicinity at the time of the accident, commenced this action for their son’s wrongful death and for the pain and suffering endured by plaintiff Laurie J. Wallace, decedent’s mother, who assertedly was in the zone of danger. Defendants moved to amend their answer to add a counterclaim charging that plaintiffs’ negligence was the primary cause of the accident; their claimed negligence is that they did not keep decedent from playing in the street. Defendants appeal the denial of their motion. We affirm.

[779]*779The gravamen of the counterclaim is negligent parental supervision of a child, which is not actionable (see, Holodook v Spencer, 36 NY2d 35, 48; Hlavinka v Slovak Sky Bungalow Colony, 203 AD2d 855). Defendants’ contrary view notwithstanding, a breach of no duty, apart from that stemming from the family relationship, has been alleged (see, Barocas v Woolworth Co., 207 AD2d 145; Walden v Rensselaer Polytechnic Inst, 116 AD2d 963).

Cardona, P. J., White, Casey and Spain, JJ., concur. Ordered that the order is affirmed, with costs.

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Bluebook (online)

221 A.D.2d 778, 633 N.Y.S.2d 241, 1995 N.Y. App. Div. LEXIS 11766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallace-v-pacelli-nyappdiv-1995.

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