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Donna Palaj and Richard Freisinger v. Bob Hoare

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department


February 9, 2012

DONNA PALAJ AND RICHARD FREISINGER,
RESPONDENTS,
v.
BOB HOARE, DEFENDANT, -AND ELLEN BOUGHEN,
APPELLANT.

Appeal from a judgment of the City Court of Middletown, Orange County (Robert F. Moson, J.), entered October 6, 2010.

Palaj v Hoare

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 9, 2012

PRESENT: NICOLAI, P.J., MOLIA and IANNACCI, JJ

The judgment, insofar as appealed from, after a non-jury trial, awarded plaintiffs the principal sum of $3,778.16 as against defendant Ellen Boughen.

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and judgment is directed to be entered dismissing the action as against defendant Ellen Boughen.

Plaintiffs commenced this small claims action to recover for property damage to their automobile which was involved in a collision with an all terrain vehicle (ATV) driven by the son of defendant Ellen Boughen, and owned by defendant Bob Hoare. After a non-jury trial, the City Court awarded plaintiffs the principal sum of $3,778.16 as against both defendants. Defendant Ellen Boughen appeals and contends, among other things, that plaintiffs failed to prove that she had given her son permission to operate the ATV.

Upon a review of the record, we find that the judgment, insofar as appealed from, failed to provide the parties with substantial justice according to the rules and principles of substantive law (UCCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). It is well settled that a parent owes a duty to protect third parties from harm which is clearly foreseeable from his or her child's improvident use or operation of a dangerous instrument, where such use is found to be subject to the parent's control (see Rios v Smith, 95 NY2d 647, 653 [2001]; Nolechek v Gesuale, 46 NY2d 332, 340 [1978]). Here, plaintiffs failed to meet their burden of establishing defendant Boughen's liability because they failed to show that she had any control over, or even knowledge of, her son's use or operation of the ATV involved in the accident, which ATV was owned by defendant Hoare. Accordingly, the judgment, insofar as appealed from, is reversed and judgment is directed to be entered dismissing the action as against defendant Ellen Boughen.

Nicolai, P.J., Molia and Iannacci, JJ., concur.

Decision Date: February 09, 2012

20120209

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