FLOWERS v. Robert N. Utley, Ben Pennetta and George Filowick, Jr., Defendants–Respondents. (2007)

Plaintiffs' mother commenced this action on plaintiffs' behalf, alleging that plaintiffs are entitled to damages for injuries they sustained as result of their exposure to lead paint at various premises owned or managed by, inter alia, Robert N. Utley and Ben Pennetta (defendants).   Supreme Court properly granted the motion of defendants for a protective order relieving them from having to respond to plaintiffs' notice to admit.   Further, the court properly denied that part of plaintiffs' cross motion seeking a declaratory judgment or, alternatively, requesting that the court take judicial notice that plaintiffs' mother is not a party to the action (see J.G. v. Zachman, 34 A.D.3d 1277, 825 N.Y.S.2d 621).   Moreover, under the circumstances of this case, the court did not abuse its discretion in denying that part of plaintiffs' cross motion for leave to discontinue the action against three of the defendants, other than Utley and Pennetta (see id.).

 We further conclude that the court properly denied that part of plaintiffs' cross motion seeking to dismiss the 11th affirmative defense in each defendant's answer.   The court, however, should have granted plaintiffs' cross motion in part by dismissing the third, fourth, sixth, and ninth affirmative defenses in each defendant's answer insofar as they allege the failure to mitigate damages, assumption of risk, or culpable conduct on the part of plaintiffs, who were only two and three years old, respectively, when they moved out of the subject premises.   Those affirmative defenses are not available with respect to such allegations because infants of such young age are non sui juris as a matter of law (see Verni v. Johnson, 295 N.Y. 436, 437–438, 68 N.E.2d 431;  Boyd v. Trent, 297 A.D.2d 301, 302–303, 746 N.Y.S.2d 191;  Smith v. Sapienza, 115 A.D.2d 723, 724, 496 N.Y.S.2d 538;  cf. Estate of Pesante v. County of Seneca, 1 A.D.3d 915, 917–918, 768 N.Y.S.2d 69).   The third affirmative defense also is not available insofar as it alleges the failure to mitigate damages on the part of plaintiffs' mother, requiring dismissal of that affirmative defense in its entirety, and the fourth, sixth and ninth affirmative defenses and the counterclaim in each defendant's answer also are not available insofar as they allege negligence on the part of plaintiffs' mother, including her negligent supervision of plaintiffs (see Christopher M. v. Pyle, 34 A.D.3d 1286, 823 N.Y.S.2d 728;  Ward v. Bianco, 16 A.D.3d 1155, 1156, 792 N.Y.S.2d 749;  see generally LaTorre v. Genesee Mgt., 90 N.Y.2d 576, 579, 665 N.Y.S.2d 1, 687 N.E.2d 1284).   In addition, they are not available insofar as they seek to impute the alleged negligence of plaintiffs' mother to plaintiffs for the purpose of reducing their recovery (see General Obligations Law § 3–111;  Holodook v. Spencer, 36 N.Y.2d 35, 48, 364 N.Y.S.2d 859, 324 N.E.2d 338;  Cox v. Cheaib, 231 A.D.2d 841, 842, 647 N.Y.S.2d 317).   We therefore modify the order accordingly.

Finally, we conclude that the court properly refused to dismiss the affirmative defenses and counterclaims insofar as they allege that plaintiffs' mother affirmatively created or exacerbated the lead paint conditions at the subject premises by “chang[ing]” or otherwise “damag[ing] ․ the paint conditions ․ [, thereby] causing the alleged lead exposure”;  exposing plaintiffs to lead paint conditions elsewhere and/or by other instrumentalities;  and negligently “attempting to remediate, remove and/or maintain the premises” (see Ward, 16 A.D.3d at 1156–1157, 792 N.Y.S.2d 749;  Cantave v. Peterson, 266 A.D.2d 492, 493, 698 N.Y.S.2d 721;  Arriaga v. Michael Laub Co., 233 A.D.2d 244, 245, 649 N.Y.S.2d 707;  Alharb v. Sayegh, 199 A.D.2d 229, 230, 604 N.Y.S.2d 243).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting plaintiffs' cross motion in part and dismissing the third affirmative defenses of defendants Robert N. Utley and Ben Pennetta and the fourth, sixth and ninth affirmative defenses and counterclaims of those defendants insofar as those affirmative defenses allege assumption of risk or culpable conduct on the part of plaintiffs and insofar as those affirmative defenses and counterclaims allege negligence on the part of plaintiffs' mother or seek to impute the alleged negligence of plaintiffs' mother to plaintiffs for the purpose of reducing their recovery and as modified the order is affirmed without costs.

MEMORANDUM: