BURGESS v. CAPPOLA (1998)

Plaintiffs commenced this action seeking damages for serious head injuries suffered by their infant son when he fell from a second-story window of their apartment to the concrete pavement 15 feet below.   Defendants, the owners of the building or alleged agents of the owners, asserted as affirmative defenses that the negligence of plaintiffs caused their son's accident.

 Supreme Court properly granted plaintiffs' motion to dismiss the affirmative defenses.   Parents cannot be held liable to their children for the negligent failure to provide adequate supervision (see, Holodook v. Spencer, 36 N.Y.2d 35, 40-41, 364 N.Y.S.2d 859, 324 N.E.2d 338).   Further, “a third party cannot impose liability upon parents for contribution or indemnification unless the culpable act committed by the parents violated a duty owed to the world at large” (McNamara v. Banney, 249 A.D.2d 950, 951, 672 N.Y.S.2d 569).   We reject defendants' contention that, as tenants, plaintiffs owed a duty to the world at large to maintain the windows in a manner that would prevent infant children from crawling through them and falling.   The lease requires the owner to maintain and repair the leased premises as long as the condition requiring maintenance or repair is not caused by the tenant, and there is no proof that plaintiffs were responsible for the condition of the window from which their son fell.   The record establishes that the owner exercised control over the windows by removing screens for cleaning, replacing screens with storm windows for the winter season, and, shortly after this accident, installing protective grates in several of the second-floor windows to prevent children from falling from the windows.   Thus, the court properly dismissed the affirmative defenses (see, Zikely v. Zikely, 98 A.D.2d 815, 470 N.Y.S.2d 33, affd. 62 N.Y.2d 907, 479 N.Y.S.2d 8, 467 N.E.2d 892;  McNamara v. Banney, supra;  Navaro v. Ieraci, 214 A.D.2d 713, 625 N.Y.S.2d 642;  Wilson v. Sears, Roebuck & Co., 126 A.D.2d 954, 511 N.Y.S.2d 726;  Franklin v. Krumanocker, 114 A.D.2d 611, 494 N.Y.S.2d 214).

Order unanimously affirmed with costs.

MEMORANDUM: