Kolodziejczak v. Kolodziejczak , 920 N.Y.S.2d 520 ( 2011 )

Carni and Martoche, JJ. (dissenting in part).

We respectfully dissent in part. We agree with the majority that Supreme Court erred in denying that part of the motion of defendant Raymond Kolodziejczak (hereafter, grandfather) for summary judgment dismissing the negligent supervision cause of action against him, inasmuch as the grandfather had no reason to perceive a need to control plaintiffs son. We further agree with the majority that the court erred in denying the cross motion of defendant Ray Kolo Excavating, Inc. (Kolo) for, inter alia, summary judgment dismissing the amended complaint and cross claim against it. We conclude, however, that the court also erred in denying that part of the grandfather’s motion seeking summary judgment dismissing the negligent entrustment cause of action against him. We note that the grandfather and Kolo do not appeal from that part of the order denying plaintiffs motion for discovery inasmuch as they are not aggrieved by it. We therefore would reverse the order insofar as appealed from.

Generally, a parent or, in this case, a grandparent, may be liable for injuries to a third-party resulting from the entrustment of an instrument made dangerous by the age, intelligence, infirmity, disposition or training of the child using the instrument (see generally Nolechek v Gesuale, 46 NY2d 332, 338 [1978]). The rationale is that the person responsible for the child “owes a duty to protect third parties from harm that is clearly foreseeable from the child’s improvident use or operation of a dangerous instrument, where such use is found to be subject to [that person’s] control” (Rios v Smith, 95 NY2d 647, 653 [2001]; see LaTorre v Genesee Mgt., 90 NY2d 576, 581 [1997]). We cannot conclude that the evidence supports the determination that the grandfather entrusted a dangerous instrument, i.e., the log splitter (splitter), to plaintiffs son. Rather, the evidence establishes that the child’s father was supervising him with respect to the operation of the splitter. It would be inconsistent to conclude that the use of the splitter by plaintiffs son was subject to the grandfather’s control and also to conclude, as the majority does, that the grandfather had no reason to perceive a need to control plaintiffs son. Present—Smith, J.P., Fahey, Carni, Sconiers and Martoche, JJ.