| Maldonado v Newport Gardens, Inc. |
| 2012 NY Slip Op 00341 [91 AD3d 731] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Daisy Maldonado, Individually, as Mother and Natural Guardian ofJamel Denis, as Administratrix of the Estate of Treina Davis, Deceased, and as Coadministratorof the Estate of Joshua Alexander Maldonado, Deceased, et al., Respondents, v NewportGardens, Inc., et al., Defendants, and Cambridge Security Services Corp.,Appellant. |
—[*1] Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Stephen C. Glasser andSusan M. Jaffe of counsel), for respondents.
In a consolidated action to recover damages for personal injuries and wrongful death, etc.,the defendant Cambridge Security Services Corp. appeals, as limited by its brief, from so muchof an order of the Supreme Court, Kings County (F. Rivera, J.), dated April 8, 2011, as denied itsmotion for leave to amend its answer to assert a counterclaim against the plaintiff DaisyMaldonado in her individual capacity.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendant Cambridge Security Services Corp. for leave to amend its answer toassert a counterclaim against the plaintiff Daisy Maldonado in her individual capacity is granted.
On July 2, 2005, a fire inside the apartment of the plaintiff Daisy Maldonado resulted in thedeaths of two of her children, serious injury to her third child, and serious injury to another adult.Maldonado and the father of one of the deceased children, in various capacities, commencedseveral actions against, among others, the owner and manager of the apartment complex, seeking,inter alia, damages for personal injuries and wrongful death. The actions were consolidated in2007, and Cambridge Security Services Corp. (hereinafter Cambridge) was added as a defendant.In November 2010, Cambridge moved for leave to amend its answer to assert a counterclaimagainst Maldonado in her individual capacity. The Supreme Court denied the motion, andCambridge appeals.
Applications for leave to amend pleadings under CPLR 3025 (b) should be freely grantedunless the proposed amendment (1) would unfairly prejudice or surprise the opposing party, or(2) is palpably insufficient or patently devoid of merit (see Lucido v Mancuso, 49 AD3d 220, 222 [2008]). The sufficiencyor underlying merit of the proposed amendment is to be examined no further (id. at 227;see Sample v Levada, 8 AD3d465, 467-468 [2004]). Here, Cambridge sought to amend its answer to assert a counterclaimagainst Maldonado in her individual capacity based on allegations that she herself boreresponsibility for the injuries by leaving an almost entirely burnt candle [*2]unattended while she left the apartment to buy food. The candlewas determined to be the source of the fire. Maldonado's deposition testimony indicated that theapartment's deadbolt lock could not be unlocked from either the inside or outside of theapartment without a key, and that she had locked the door from the outside before leaving theapartment.
The Supreme Court denied Cambridge's motion on the basis of the longstanding rule in thisState that a minor child has no legally cognizable cause of action against a parent to recoverdamages for injuries caused by that parent's negligent supervision (see Holodook vSpencer, 36 NY2d 35, 45-46 [1974]). But, as the Court of Appeals recognized inHolodook itself, this rule applies only where the duty is characterized as one ofsupervision and exists because of the parent-child relationship. It does not apply where the dutydoes not depend on that relationship: "[o]f course, where the duty is ordinarily owed, apart fromthe family relation, the law will not withhold its sanctions merely because the parties are parentand child" (id. at 50; see Hoppe v Hoppe, 281 AD2d 595, 596 [2001]; Leek vMcGlone, 140 AD2d 413, 413-414 [1988]; Semmens v Hopper, 128 AD2d 767, 768[1987]; Grivas v Grivas, 113 AD2d 264, 268-269 [1985]; Hurst v Titus, 77AD2d 157, 158-159 [1980]). Here, the proposed counterclaim rests on the duty that Maldonadoowed to, at minimum, anyone who may have been in the apartment itself, including the adult inthe apartment who was exposed to injury caused by Maldonado's alleged actions. It did not arisefrom the parent-child relationship. Therefore, contrary to the Supreme Court's conclusion, theproposed counterclaim was not patently insufficient or palpably devoid of merit (see Lucido vMancuso, 49 AD3d at 232). Accordingly, the Supreme Court erred in denying Cambridge'smotion for leave to amend its answer (id.; see CPLR 3025 [b]). Rivera, J.P.,Balkin, Eng and Austin, JJ., concur.