| Troiano v DeMarco |
| 2008 NY Slip Op 03634 [50 AD3d 1020] |
| April 22, 2008 |
| Appellate Division, Second Department |
| John Troiano, Respondent, v Anthony DeMarco,Defendant, and Rosalie Sarno et al., Appellants. |
—[*1] Joseph M. Buderwitz, White Plains, N.Y. (Denise M. Cossu of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Rosalie Sarno andSalvatore Sarno appeal from an order of the Supreme Court, Westchester County (LaCava, J.),entered December 15, 2006, which denied their motion for summary judgment dismissing thecomplaint insofar as asserted against them.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantsRosalie Sarno and Salvatore Sarno for summary judgment dismissing the complaint insofar asasserted against them is granted.
The plaintiff allegedly sustained a rotator cuff tear at the home of the defendants RosalieSarno and Salvatore Sarno (hereinafter together the Sarnos), when the defendant AnthonyDeMarco (hereinafter their emancipated son), the son of Rosalie Sarno and the stepson ofSalvatore Sarno, who had a history of psychiatric problems, allegedly pushed him to the ground,causing him to hit the steps of the interior staircase. The plaintiff commenced this actionalleging, inter alia, the negligence of the Sarnos. The Sarnos moved for summary judgment,contending that they had no duty to protect the plaintiff from their emancipated son, that they hadno authority or ability to control their son's behavior, and that they were unaware of the need forsuch control. The Supreme Court denied their motion, and we reverse.
The Sarnos submitted evidence sufficient to establish their prima facie entitlement to [*2]judgment as a matter of law. They cannot be held vicariously liablefor the actions of their emancipated son (see Hartsock v Hartsock, 189 AD2d 993 [1993];Mimoun v Bartlett, 162 AD2d 506 [1990]; Fischer v Lunt, 162 AD2d 1016[1990]). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue offact as to whether the Sarnos, as landowners, had the ability and opportunity to control theconduct at issue through the exercise of reasonable measures, and whether their alleged failure todo so was a proximate cause of the injuries alleged (see D'Amico v Christie, 71 NY2d76, 85 [1987]; DeRyss v New York Cent. R.R. Co., 275 NY 85, 93-94 [1937]). Mastro,J.P., Dickerson, Belen and Chambers, JJ., concur.