HORAN v. BROWN (2007)

Appeal from an order of the Supreme Court (McCarthy, J.), entered June 30, 2006 in Albany County, which granted plaintiff Bobbie Jo Horan's motion to dismiss the counterclaim against her.

In this personal injury action, plaintiffs assert that defendant's negligent operation of his automobile caused it to collide with a vehicle in which plaintiffs were riding.   Defendant's answer, among other things, asserted a counterclaim against plaintiff Bobbie Jo Horan, a passenger in plaintiffs' vehicle, who at the time of the accident held in her arms her five-week-old son.   This counterclaim seeks apportionment of liability because Horan “prohibited” her child from being restrained in a child restraint system in breach of a duty “independent of her parental duty.”   Supreme Court dismissed the counterclaim against Horan for failure to state a cause of action and defendant appeals.

 We affirm.   It is well settled that “a parent cannot be held secondarily liable for contribution to third parties for damages resulting from failing to supervise his or her child” (Keohan v. Di Paola, 97 A.D.2d 596, 597, 468 N.Y.S.2d 218 [1983];  see Holodook v. Spencer, 36 N.Y.2d 35, 43-51, 364 N.Y.S.2d 859, 324 N.E.2d 338 [1974];  Wheeler v. Sears Roebuck & Co., 37 A.D.3d 710, 711, 831 N.Y.S.2d 427 [2007];  Wallace v. Pacelli, 221 A.D.2d 778, 633 N.Y.S.2d 241 [1995];  Hlavinka v. Slovak Sky Bungalow Colony, 203 A.D.2d 855, 856, 611 N.Y.S.2d 335 [1994] ).   However, parents can be liable to their children (and, by extension, for contribution to third parties) for ordinary negligence-that is, for conduct that “would be a tort ‘if done by one ordinary person to another’ ” (Holodook v. Spencer, supra at 48, 364 N.Y.S.2d 859, 324 N.E.2d 338 [citation omitted];  see Hoppe v. Hoppe, 281 A.D.2d 595, 724 N.Y.S.2d 65 [2001];  Cantave v. Peterson, 266 A.D.2d 492, 493, 698 N.Y.S.2d 721 [1999];  Hlavinka v. Slovak Sky Bungalow Colony, supra at 856-857, 611 N.Y.S.2d 335).   Here, since a passenger has no independent legal duty to insure that a fellow passenger in the vehicle is restrained by a seat belt or in a child's safety seat, dismissal was warranted (see Thurel v. Varghese, 207 A.D.2d 220, 223, 621 N.Y.S.2d 633 [1995] ).   Thus, here, any breach of duty arises out of the parent-child relationship and constitutes negligent parental supervision for which there is no liability.   Although Vehicle and Traffic Law § 1229-c(1) imposes a duty upon operators of motor vehicles to ensure that child passengers are properly restrained (see Thurel v. Varghese, supra at 223-224, 621 N.Y.S.2d 633), defendant does not claim that Horan was in any way involved in the operation of plaintiffs' vehicle and does not premise negligence on a statutory violation.   Thus, Supreme Court correctly dismissed defendant's counterclaim for failure to state a cause of action.

ORDERED that the order is affirmed, with one bill of costs.

MUGGLIN, J.

CARDONA, P.J., CREW III, ROSE and LAHTINEN, JJ., concur.