Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Look up keyword
Like this
4Activity
0 of .
Results for:
No results containing your search query
P. 1
NY Judge: Tricycle Riding 4 Year-Old Can be Sued for Allegedly Hitting, Killing 87 Year-Old

NY Judge: Tricycle Riding 4 Year-Old Can be Sued for Allegedly Hitting, Killing 87 Year-Old

Ratings: (0)|Views: 190 |Likes:
Published by Justia.com
This decision is mind boggling. Suing the parents we can see happening, but what does a 4 year-old riding a tricycle now about negligence and reasonable standards of care?
This decision is mind boggling. Suing the parents we can see happening, but what does a 4 year-old riding a tricycle now about negligence and reasonable standards of care?

More info:

Published by: Justia.com on Oct 29, 2010
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF or read online from Scribd
See more
See less

04/14/2012

pdf

 
SUPREME
COURT
OF
THE
STATE
OF
NEWYORK
-
EW
YORK
COUNTY
Notice of Motlonl
Order
to Show Cause
-
ffidavlts
-
xhlblts
...
Answering Affldavlts
-
xhibits
(Memo)
PRESENT:
HON.
PAUL WOOTEN
Justice
PAPFRS
NUMBERED
I
2
PART
7
DOUGLAS
D.
MENAGH,
as
Executor
of
theEstate
of
CLAIRE MENAGH,
deceased,
I
Plalntlff,
INDEX NO.
107a56IOa
Replying Affidavits (Reply
Memo)
13
Cross-Motion:
nYes
No
In this action for personal injury, plaintiff alleges
that
the infant defendants, who wereracing bicycles on a sidewalk while under the supervision of their parent defendants, struck theplaintiff with their bicycles, causing severe injuries
to
the elderly plaintiff Claire Menagh.
The
infant defendant Juliet Breitman, sued herein
as
Juliette Breitman, seeks in this pre-answermotion
to
dismiss plaintiffs complaint,
as
against
her only, based
upon
documentary evidenceand upon failuretostate a causeofaction, pursuant to
CPLR
5
321 (a)(l)
&
(7).
Defendant-movant
has
attached her birth certificate as an exhibit
to
her
motion
papers. The sole issuebefore the Court is whether an infant aged four years, nine months,
is
non
suijuris,
incapable
of
negligence
as
a matter of
law,
under the facts presented.
Page
1 of
6
 
CPLR
321
l(a)
Motion
to
Dismiss
Standards
CPLR
321
I
a)
provides:(a) Motion to dismiss cause of action. A party may
move
for judgmentdismissing one or more causes of action asserted against him on theground that:1.
A
defense is founded on documentary evidence;
,
. .
/,
7.
the pleading fails to state a cause of action[.]Pursuant to CPLR 321 1 a)(I), in order to “prevail on a motion
to
dismiss based ondocumentary evidence, the documents relied upon must definitively dispose of plaintiWs claim”
(Bronxville
Knolls v
Webster
Town
Ctr.
Pshp.,
221 AD2d 248 (IDept. 1995);
Juliano
v
McEntee,
150 AD2d 524 [2d Dept 19891;
Demas
v
325
W.
End
Ave.
Corp.,
127
AD2d 476 [I“Dept 19861). A CPLR 321 (a)(l) “motion
may
be appropriately granted only where thedocumentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing adefense
as
a matter of
law’’
(Goshen
v
Mut.Life
Ins. Co.,
98 NY2d 314, 326-27 [2002])Upon a 321 1
a)(7)
motion to dismiss for failure to state
a
cause
of
action, the “questionfor
us
is
whether the requisite allegations of any valid cause
of
action cognizable by the statecourts ‘can be fairly gathered from
all
the averments’’
(Foley
v
D‘Agostino,
21 AD2d 60,65[IatDept. 19641, quoting
Condon
v
Associated
Hosp.
Sew.,
287
NY 41 1, 414 [1942]).In order todefeat
a
pre-answer motion to dismiss pursuant to CPLR 321 1, the opposing party need onlyassert facts of an evidentiary nature which fit withinanycognizable legal theory.
(Bonnie
&
Co.
Fashions,
lnc.
v.
Bankers
Trust
Co.,
262 A.D.2d 188
[I
t Dept. 19991.)When determining a CPLR 321 1
a)
motion, “we liberally construe the complaint andaccept
as
true the facts alleged in the complaint and any submissions in opposition to thedismissal motion”
(57
1
W.
232nd
Owners
Corp.
v.
Jennifer
Realty
Co.
98
NY2d 144, 151 1 52[2002];
Leon
v
Martinez,
84 NY2d
83,
87,
[1994];
Sokoloff
v
Harriman
Estates
Dev.
Corp.,
96NY2d 409, [2001];
Wieder
v Skala,
80 NY2d
628,
[1992]). “We also accord plaintiffs the benefitof
every
possible favorable inference”
(51
1
W.
232nd
Owners
Corp.
98 NY2d at 152;
Sokoloff
Page2of
6
 
v Harriman Estates
Dev.
Corp,
96
NY2d at 414).
Non
Sul
Juris
Defendant-movant correctly notes that infants under the age of four are conclusivelypresumed incapable of negligence
(Vsrni
v
Johnson,
295 NY 436, 438 [1946]). Defendant-movant Juliet Breitman, however, was over the age of four at the time of the subject incident.
I
For infants above the age of four, there is no bright line rule, and “in considering theconductofan infant in relation to other persons or their property, the infant should be held to
a
standard of care
. .
.
by what is expected
of
a reasonably prudent child of that age, experience,intelligence and degree of development and capacity”
(Gonzalez
v
Medina,
69
AD2d 14, 18
[Itt
Dept. 19791, citing
Camardo v.
New
York
State Rys.
247 N.Y. 11
1
[1928];
see
also Steeves v
City
of
Rochester,
293 NY 727, 731
[I9441
[“The general rule is that
‘a
child is not guilty ofcontributory negligence if it has exercised the care which may reasonably be expected
of
a childof similar age and capacity.”’];
Weidenfeld
v
Surface Transp.
Corp.
of
N. Y.,
269 AD 341 345[1
ept 19451;
McLoughin v Bonpark Realty
Corp.
260 AD 471 [IatDept. 19401;
Redrnond
v
City
of New
York,
81 AD2d 908, 909 [2d Dept. 19811,
aRd
55
NY2d 796 [1981];
Eagle
v
Janoff,
12 AD2d 638,639 [Zd Dept. 19601;
Yun
Jeong
Koo
v
St.
Bernard,
89 Misc 2d 775, 779
[Sup Ct,
Queens County 19771).
If
“conflicting inferences may be drawn, the question is one of fact; if only one inferencecan
be
drawn the question is one of law”
(Carnardo,
247
NY
at 116 [1928];
accord Steeves,
239NY at 731-32;
see
also
Weidenfeld,
269 AD at 345;
Republic
Ins.
Co.
v
Michel,
885
F
Supp426, 432-34 [EDNY 19951 [applying New York State Law, an infant aged four years, fourmonths was not automatically
non
suijuris,
but could be found
non
suijuris
upon thepresentation of “substantial evidence regarding the child’s lack of intelligence and maturity”];
cf.
Boyd
v
Trent,
297 AD2d 301 [2d Dept. 20021 [held, without preliminary discussion, that fouryear old infant was
non
suijuris
for contributing to accident by distracting parent from driving,Page3of
6

Activity (4)

You've already reviewed this. Edit your review.
1 thousand reads
1 hundred reads
Susan Rastella liked this
Michelle Laird liked this

You're Reading a Free Preview

Download
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->