NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
April 14, 2009
SAPPHIRE SIMMONS, ETC., ET AL., PLAINTIFFS-APPELLANTS,
VITO SACCHETTI, ET AL., DEFENDANTS-RESPONDENTS, AMBASSADOR FUEL AND OIL BURNER CORP., ET AL., DEFENDANTS.
Order, Supreme Court, Bronx County (Dominic R. Massaro, J.), entered on or about October 15, 2008, which denied plaintiffs' motion to dismiss the counterclaims of defendants Vito Sacchetti and TMS Management Company for failure to state a cause of action or for summary judgment dismissing the counterclaims, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of plaintiffs dismissing the counterclaims.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Saxe, J.P., Friedman, Sweeny, Acosta, Freedman, JJ.
Plaintiffs seek damages for injuries sustained by the infant plaintiff after she wandered into the bathroom and entered the tub, which was filling with scalding water. As the counterclaims brought by the building owner and management company are based on the mother's negligent supervision of the infant, they do not state a cause of action (see Munoz v Mael Equities, 286 AD2d 213, 213-214 ; Deshler v East W. Renovators, 275 AD2d 252 ; Zikely v Zikely, 98 AD2d 815 , affd 62 NY2d 907 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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