| Nyhus v Valentino |
| 2011 NY Slip Op 03042 [83 AD3d 802] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Andrew Nyhus et al., Respondents, v Michael P. Valentinoet al., Appellants. (And a Third-Party Action.) |
—[*1] Pillinger Miller Tarallo, LLP, Elmsford, N.Y. (David E. Hoffberg of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Nassau County (Brandveen, J.), entered December 18, 2009, whichdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthat branch of the defendants' motion which was for summary judgment dismissing the complaintinsofar as asserted against the defendant Michael P. Valentino and substituting therefor aprovision granting that branch of the motion, and (2) by deleting the provision thereof denyingthat branch of the defendants' motion which was for summary judgment dismissing so much ofthe complaint as sought to recover damages based upon a dangerous condition insofar as assertedagainst the defendant Robin Valentino and substituting therefor a provision granting that branchof the motion; as so modified, the order is affirmed, without costs or disbursements.
The infant plaintiff, then nine years old, allegedly was injured while riding a motorizedscooter in the street near the home of the defendants, Michael P. Valentino (hereinafter Michael)and Robin Valentino (hereinafter Robin). The infant plaintiff testified at his deposition that hewas riding the scooter at a speed of about 10 to 15 miles per hour when the scooter hit the curband fell over. At the time of the accident, the infant plaintiff and two or three other boys were ona "play date" with the defendants' nine-year-old son. Although the motorized scooter belonged toone of the other visiting boys, Robin had given that child's mother permission to bring it to herhome for the children to ride. It is undisputed that Michael was not home at the time of theaccident.
Following the accident, the plaintiffs commenced this action to recover damages for personalinjuries, alleging that the infant plaintiff was injured as a result of negligent supervision,negligent entrustment of a dangerous instrument, and a dangerous condition on the defendants'premises. After depositions were conducted, the defendants moved for summary judgmentdismissing the complaint, arguing that the accident did not occur as a result of any dangerouscondition on their property, that they did not entrust the motorized scooter to the infant plaintiff,and that Robin adequately supervised the children. The Supreme Court denied the defendants'motion. We modify.
The Supreme Court should have granted that branch of the defendants' motion which was forsummary judgment dismissing the complaint insofar as asserted against Michael. The [*2]defendants made a prima facie showing that Michael was entitled tojudgment as a matter of law by submitting evidence that the accident, which occurred on thestreet near their home, was not caused by a dangerous condition on their property (see Marino v Bingler, 60 AD3d645, 647 [2009]). The defendants also made a prima facie showing that the infant plaintiffwas not in Michael's care at the time of the accident, and that Michael did not provide or entrustthe motorized scooter to the infant plaintiff (id. at 647; see Nadeau v Stack, 87AD2d 943, 944 [1982]). In opposition, the plaintiffs failed to raise a triable issue of fact as toMichael's liability.
Since the defendants established, prima facie, that the accident did not occur on theirproperty and the plaintiffs failed to raise a triable issue of fact in this regard, the Supreme Courtshould also have granted that branch of the defendants' motion which was for summary judgmentdismissing so much of the complaint as sought to recover damages based upon a dangerouscondition insofar as asserted against Robin. However, the Supreme Court properly denied thosebranches of the defendants' motion which were for summary judgment dismissing the negligentsupervision and negligent entrustment claims insofar as asserted against Robin. The defendantsfailed to make a prima facie showing that Robin used reasonable care to adequately protect andsupervise the infant plaintiff while he was in her care during the play date (see Zalak vCarroll, 15 NY2d 753, 754 [1965]; Brennan v Sinski, 31 AD3d 1108, 1109 [2006]; Goldstein vWelter, 303 AD2d 551 [2003]; Appell v Mandel, 296 AD2d 514 [2002]), and thatshe did not entrust the motorized scooter, an allegedly dangerous instrument unsuitable for anine-year-old to ride, to the infant plaintiff (see Ripton v Gracie, 266 AD2d 885 [1999];see also Rios v Smith, 95 NY2d 647 [2001]; Kelly v DiCerbo, 27 AD3d 1082, 1083 [2006]). Covello, J.P., Eng,Hall and Roman, JJ., concur.