WARD WARD v. BIANCO

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Supreme Court, Appellate Division, Fourth Department, New York.

Antonio WARD and Destiny Ward, Infants, by their Parent and Natural Guardian, Malissa WARD, Plaintiffs, v. Eugene BIANCO, et al., Defendants.

Bowpas Properties, Inc. and James G. Mogle, Third-party Plaintiffs-Respondents, v. Malissa Ann Ward and Antonio Ward, Third-Party Defendants-Appellants.

Decided: March 18, 2005

PRESENT:  GREEN, J.P., SCUDDER, KEHOE, SMITH, AND HAYES, JJ. Athari Law Office, Utica (Mo Athari of Counsel), for Third-Party Defendants-Appellants. MacKenzie Hughes LLP, Syracuse (David M. Garber of Counsel), for Third-Party Plaintiff-Respondent Bowpas Properties, Inc.

In this action brought by the mother of two children to recover damages for their alleged poisoning as a result of their exposure to lead paint at various premises, third-party defendants, the parents of the children, appeal from an order denying those parts of their motion seeking summary judgment dismissing the third-party complaints of defendant third-party plaintiff Bowpas Properties, Inc. (Bowpas) and defendant third-party plaintiff James G. Mogle.   Those third-party complaints seek contribution or common-law indemnification from the parents and allege that the parents negligently caused or failed to prevent their children's exposure to lead paint.

 We agree with the parents that Supreme Court erred in failing to dismiss the third-party complaint of Bowpas.   That pleading asserts only claims of negligent parental supervision, in contravention of well-settled principles of law (see Munoz v. Mael Equities, 286 A.D.2d 213, 214, 728 N.Y.S.2d 662;  Cantave v. Peterson, 266 A.D.2d 492, 493, 698 N.Y.S.2d 721;  Morales v. Felice Props. Corp., 221 A.D.2d 181, 633 N.Y.S.2d 305;  Navaro v. Ieraci, 214 A.D.2d 713, 713-714, 625 N.Y.S.2d 642;  see generally Holodook v. Spencer, 36 N.Y.2d 35, 44-51, 364 N.Y.S.2d 859, 324 N.E.2d 338;  Tenebruso v. Toys “R” Us-NYTEX, 256 A.D.2d 1236, 1237, 682 N.Y.S.2d 785).

 We similarly conclude that the court erred in failing to dismiss the third-party complaint of Mogle insofar as it likewise asserts claims of negligent parental supervision.   We conclude, however, that the third-party complaint of Mogle states a viable claim against the parents insofar as it alleges that the parents “created and/or exacerbated the lead paint conditions in the subject premises by attempting to remediate, remove and/or maintain the premises” (see Cantave, 266 A.D.2d at 493, 698 N.Y.S.2d 721;  Alharb v. Sayegh, 199 A.D.2d 229, 230, 604 N.Y.S.2d 243;  Berger v. City of New York, 177 Misc.2d 891, 892-894, 676 N.Y.S.2d 909).   We thus modify the order by granting those parts of the motion seeking summary judgment dismissing the third-party complaint of Bowpas and the negligent parental supervision claims of Mogle.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting those parts of the motion with respect to the third-party complaints and dismissing the third-party complaint of defendant third-party plaintiff Bowpas Properties, Inc. and the negligent parental supervision claims of defendant third-party plaintiff James G. Mogle and as modified the order is affirmed without costs.

MEMORANDUM: