Rosario v. Bann Housing Corp. — 220 A.D.2d 345

Majority

p. 345

Jimmy Rosario, an Infant, by His Mother and Natural Guardian, Eneria Polanco, et al., Respondents, v Bann Housing Corp. et al., Defendants, and Spiti, Inc., Appellant.

[633 NYS2d 947]

—Order, Supreme Court, Bronx County (Anne Tar-gum, J.), entered on or about May 12, 1994, denying defendant-appellant’s motion to amend its answer to set forth counterclaims against plaintiffs’ parents, unanimously affirmed, without costs.

In the absence of evidence that the parents had a duty with respect to the painting of their rented apartment (see, Multiple Dwelling Law § 78; Administrative Code of City of NY § 27-2013 [h]) or otherwise affirmatively created the condition giving rise to the injury (see, Barocas v Woolworth Co., 207 AD2d 145 , 149), the allegations of the proposed counterclaims are insufficient to overcome the rule prohibiting claims based on negligent parental supervision (Holodook v Spencer, 36 NY2d 35 ; compare, Alharb v Sayegh, 199 AD2d 229 ). Concur—Sullivan, J. P., Rosenberger, Asch and Nardelli, JJ.

Cases cited

Barocas v. F.W. Woolworth Co. 207 AD2d 145 N.Y. App. Div. 1995-01-12 at 149 p. 345
Holodook v. Spencer 36 NY2d 35 N.Y. 1974-12-20 p. 345
Alharb v. Sayegh 199 AD2d 229 N.Y. App. Div. 1993-12-06 p. 345