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Friedlander v. Doherty Enterprises

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


March 16, 2010

TYLER FRIEDLANDER, ETC., ET AL., RESPONDENTS,
v.
DOHERTY ENTERPRISES, INC., D/B/A APPLEBEE'S NEIGHBORHOOD BAR AND GRILL, APPELLANT.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Spinner, J.), dated February 3, 2009, which granted the plaintiffs' motion for summary judgment dismissing the counterclaim.

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.

A. GAIL PRUDENTI, P.J., RUTH C. BALKIN, JOHN M. LEVENTHAL and LEONARD B. AUSTIN, JJ.

(Index No. 28381/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The plaintiffs established their prima facie entitlement to judgment as a matter of law dismissing the defendant's counterclaim by demonstrating that the acts complained of did not implicate a duty owed to the world at large, but merely involved a claim that the infant plaintiff was negligently supervised by his parent, a non-actionable tort (see Rios v Smith, 95 NY2d 647, 651; LaTorre v Genesee Mgt., 90 NY2d 576, 579; Zikely v Zikely, 98 AD2d 815, 816, affd 62 NY2d 907; Holodook v Spencer, 36 NY2d 35, 50-51). In opposition, the defendant failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Accordingly, the Supreme Court properly granted the plaintiffs' motion for summary judgment dismissing the counterclaim (see Mazza v Ed Tompkins Plumbing Corp., 53 AD3d 599; Horan v Brown, 43 AD3d 608, 609; Wheeler v Sears Roebuck & Co., 37 AD3d 710, 711; McNamara v Banney, 249 AD2d 950, 951; Navaro v Ieraci, 214 AD2d 713, 714).

PRUDENTI, P.J., BALKIN, LEVENTHAL and AUSTIN, JJ., concur.

20100316

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