LANZETTA v. Morgan Washburn, et al., Defendants-Respondents. (2008)

Order, Supreme Court, Bronx County (Patricia A. Williams, J.), entered July 30, 2007, which, in an action for personal injuries, granted the motions of defendants Washburn and Demauro for summary judgment dismissing the complaint and all cross claims as against them and denied plaintiffs' cross motion for summary judgment, unanimously affirmed, without costs.

 Defendant Dominick Midori, a teenager, accidentally shot his teenage companion, plaintiff Andrew Lanzetta, in the eye with a paint ball gun that he had left on a prior occasion in their friend defendant Washburn's bedroom closet.   The undisputed evidence was that Washburn lacked actual knowledge the paint ball gun was there, and there was no evidence as to how long the gun was in the closet so as to charge her with constructive notice of its presence (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ).   Although the accident took place in her home during her absence, Washburn's mother, defendant Demauro, was not liable for negligent supervision of her daughter and her daughter's friends, since the accident was unforeseeable in light of her lack of awareness of the presence of the paint ball gun (see Rios v. Smith, 95 N.Y.2d 647, 652, 722 N.Y.S.2d 220, 744 N.E.2d 1156 [2001];  LaTorre v. Genesee Mgt., 90 N.Y.2d 576, 581-582, 665 N.Y.S.2d 1, 687 N.E.2d 1284 [1997] ).   Nor was there evidence that Demauro was aware of any dangerous propensities of her daughter's friends (see Rivers v. Murray, 29 A.D.3d 884, 815 N.Y.S.2d 708 [2006] ).