FEINERMAN v. KAPLAN (2002)

In an action to recover damages for wrongful death and conscious pain and suffering, the defendants appeal from an order of the Supreme Court, Nassau County (Brandveen, J.), entered February 15, 2001, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

 The Supreme Court properly addressed the merits of the defendants' motion for summary judgment, notwithstanding that it was made more than 120 days after the filing of the note of issue (see, CPLR 3212[a];  Andaloro v. Hidden Ponds Dev. Corp., 273 A.D.2d 185, 709 N.Y.S.2d 432;  Quinlan v. Kaufman, 258 A.D.2d 453, 684 N.Y.S.2d 597;  Gonzalez v. 98 Mag Leasing Corp., 261 A.D.2d 508, 687 N.Y.S.2d 908, affd. 95 N.Y.2d 124, 711 N.Y.S.2d 131, 733 N.E.2d 203).

 Summary judgment should have been granted in favor of the infant defendant, as he established, prima facie, that his actions were not a proximate cause of the decedent's injuries, and the plaintiffs failed to raise a triable issue of fact in opposition to that showing (see, Derdiarian v Felix Contr. Co., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666).

 Even if there had been a question of fact as to the liability of the infant defendant, his parents were entitled to summary judgment dismissing the complaint insofar as asserted against them.   It is well settled that “[p]arental liability for the torts of a child does not arise merely from the parental relationship” (Gordon v. Harris, 86 A.D.2d 948, 948-949, 448 N.Y.S.2d 598;  see, Brahm v. Hatch, 203 A.D.2d 640, 641, 609 N.Y.S.2d 956, Armour v. England, 210 A.D.2d 561, 619 N.Y.S.2d 807).   Insofar as is relevant to this appeal, liability may arise where the child has a tendency to engage in vicious conduct that might endanger a third party, and the child's parents are aware of such propensities (see, LaTorre v. Genesee Mgt., 90 N.Y.2d 576, 583, 665 N.Y.S.2d 1, 687 N.E.2d 1284;  DiCarlo v. City of New York, 286 A.D.2d 363, 729 N.Y.S.2d 176;  Brahm, supra).

The record does not support the plaintiffs' assertion that the infant defendant engaged in violent or vicious conduct prior to the incident in question and that his parents were aware of such conduct (see, Brahm v. Hatch, supra;  Armour v. England, supra).   The defendants Keith Kaplan and Amy Kaplan submitted proof in admissible form that they had no knowledge of the infant defendant's tendency to engage in vicious conduct, and the plaintiffs failed to submit proof which raised a triable issue of fact.   Thus, those defendants are entitled to summary judgment dismissing the complaint insofar as asserted against them.