73 Misc. 2d 829 | N.Y. Sup. Ct. | 1973
The plaintiff moves for an order to strike the counterclaim which was interposed under the authority of Dole v. Dow Chem. Co. (30 N Y 2d 143).
The father herein is acting as a plaintiff in the dual role, first that of guardian ad litem of his infant daughter, and also in his individual capacity in the derivative action for any expenses and loss of services.
The infant, Mary Elizabeth Kiernan, was six years of age when she was involved in an accident on August 20, 1972 with defendant’s car while she was riding a bicycle on Benken Boulevard in Franklin Square, New York, which was and still is a public highway.
The defendant argues that he has properly brought this counterclaim against plaintiff, Patrick Kiernan, individually,
Whether the changes wrought by Dole are more properly designated as substantive or procedural need not be resolved herein, as it is sufficient to note that regardless of the classification applied the actual effect is to create a substantive right to defendants, and thus the courts should proceed cautiously in these Dole matters lest the application of the usual liberal rules relating to the procedural aspects of allowing counterclaims to stand have the result of creating an unintended substantive right, particularly as to a defendant interjecting himself into a family relationship. This is not the usual case where the court is merely being asked as to whether a defendant should be able to plead a counterclaim against the plaintiff. Thus, under Sorrentino v. United States (344 F. Supp. 1308 [E. D. N. Y.]) the Dole doctrine is being applied to allow a defendant, who is a stranger to the family relationship, the right at Ms option to initiate litigation between a parent and child even where the family members chose not to exercise their sole option and right to initiate litigation under Gelbman v. Gelbman (23 N Y 2d 434), which revoked the prior court-created rule of this State that prohibited child-parent suits for nonwillful torts, which was first enumerated in 1928 in Sorrentino v. Sorrentino (248 N. Y. 626), reaffirmed as late as 1961 in Badigian v. Badigian (9 N Y 2d 472). In passing it is noted that it is an ironic coincidence that the name Sorrentino is the same named plaintiff in the case that established the rule prohibiting child-parent suits as well as in the recent Federal court case which applied the Dole case to allow a defendant by means of a counterclaim and third-party complaint to make the mother and father reluctant defendants in an action the father brought on behalf of the child for injuries sustained as a result of a tort directly involving the defendant.
In that the rulé which originally prohibited but now allows child-parent suits is not legislative, but is based on case law, it is necessary to look to the applicable holdings of the Court of Appeals for guidance in applying the Dole case. The Dole ease itself did not involve the problem of litigation involving the famly unit. All of the applicable cases (Sorrentino v. Sorrentino, 248 N. Y. 626, supra; Cannon v. Cannon, 287 N. Y. 425; Badigian v. Badigian, 9 N Y 2d 472, supra), including Judge Fuld’s dissenting opinion in Badigian upon which the Gelbman opinion was based, have one common underlying theme, and that is insurance. Up until Gelbman the courts were r$uc
Thus, for these reasons, the courts have adopted a rule to allow child-parent suits. This is particularly so as to those situations involving compulsory insurance, for none of the family members can be prejudiced by such a suit. However, this does not follow in these types of Dole counterclaims where a plaintiff father might not have a separate homeowner’s policy, for such insurance is not compulsory and as a matter of practicality in many instances many parents would not have this type of policy, or the policy might not provide the necessary
The court takes note of the decisions of Justice Helman in Marrero v. Just Cab Corp. (71 Misc 2d 474), and Justice Fein in Collazo v. Manhattan & Bronx Surface Tr. Operating Auth. (72 Misc 2d 946), in which the court in both instances denied motions to amend the answers to include a Dole counterclaim against a parent on the grounds of lack of supervision on similar facts to this case.
The court further notes that this, like every pleading question, must also be looked at in light of the CPLB- enactment that 11 pleadings shall be liberally construed. Defects shall be ignored if a substantial right of a party is not prejudiced.” (CPLB 3026).
Though it is not incumbent upon a defendant to set forth in a pleading evidentiary facts as to the parent’s negligence, there must be a showing of the requisite allegation of a valid cause of action cognizable by the court which “ ‘ can be fairly gathered from all the averments.’” (Condon v. Associated
In this particular pleading there are no averments, that unusual parental care was required, either because of the circumstances surrounding the accident or the special needs of the infant, or that the parent’s actions constituted malice or indifference. Furthermore, in this instance, the defendant has not even set forth sufficient averments as to a general lack of parental supervision. ’
Accordingly, the motion to strike the counterclaim is granted.