        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

91
CA 10-01884
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


CHRISTINE KOLODZIEJCZAK, INDIVIDUALLY AND
AS PARENT AND LEGAL GUARDIAN OF CLAIRE
KOLODZIEJCZAK, AN INFANT, PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

RAYMOND KOLODZIEJCZAK, RAY KOLO EXCAVATING, INC.,
DEFENDANTS-APPELLANTS,
AND SCOTT KOLODZIEJCZAK, DEFENDANT.


FISHMAN & TYNAN, ESQS., MERRICK (JOHN FISHMAN OF COUNSEL), FOR
DEFENDANT-APPELLANT RAYMOND KOLODZIEJCZAK.

LEVENE GOULDIN & THOMPSON, LLP, VESTAL (DANIEL R. NORTON OF COUNSEL),
FOR DEFENDANT-APPELLANT RAY KOLO EXCAVATING, INC.

DAVIDSON & O'MARA, PC, ELMIRA (RANSOM P. REYNOLDS, JR., OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeals from an order of the Supreme Court, Steuben County
(Joseph W. Latham, A.J.), entered June 21, 2010 in a personal injury
action. The order, insofar as appealed from, denied the motion of
defendant Raymond Kolodziejczak and the cross motion of defendant Ray
Kolo Excavating, Inc. for summary judgment.

     It is hereby ORDERED that the order so appealed from is modified
on the law by granting that part of the motion of defendant Raymond
Kolodziejczak for summary judgment dismissing the negligent
supervision cause of action against him and granting the cross motion
of defendant Ray Kolo Excavating, Inc. for summary judgment dismissing
the amended complaint and cross claim against it and as modified the
order is affirmed without costs.

     Memorandum: Plaintiff commenced this action, individually and on
behalf of her daughter, seeking damages for injuries sustained by her
daughter when two of her fingers were severed by a log splitter
(splitter). The accident occurred when plaintiff’s daughter was
adjusting a crooked piece of wood on the splitter and plaintiff’s
infant son simultaneously lowered the handle on the splitter to
activate it. Plaintiff asserted, inter alia, causes of action for
negligent supervision and negligent entrustment against defendants
Raymond Kolodziejczak, her children’s grandfather (grandfather) and
the owner of the property on which the accident occurred, and Ray Kolo
Excavating, Inc. (Kolo). Supreme Court denied the motion of the
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grandfather for summary judgment dismissing the amended complaint
against him and the cross motion of Kolo for, inter alia, summary
judgment dismissing the amended complaint and cross claim against it.

     We conclude that the court erred in denying that part of the
grandfather’s motion seeking summary judgment dismissing the negligent
supervision cause of action against him, and we therefore modify the
order accordingly. Insofar as the amended complaint alleges that the
grandfather had a duty to supervise plaintiff’s daughter, it is well
established that a grandparent who exercises temporary custody and
control of a child may be liable for any injury sustained by the child
that was caused by the grandparent’s negligence (see Appell v Mandel,
296 AD2d 514; Adolph E. v Lori M., 166 AD2d 906; Costello v Marchese,
137 AD2d 482, 483). Here, the grandfather met his initial burden on
the motion with respect to his alleged negligent supervision of
plaintiff’s daughter by submitting evidence establishing that he did
not supervise or control plaintiff’s daughter at any relevant time,
and plaintiff failed to raise a triable issue of fact in opposition
(see generally Zuckerman v City of New York, 49 NY2d 557, 562).

     Insofar as the amended complaint alleges that the grandfather had
a duty to supervise plaintiff’s son, we note that “[p]roperty owners
‘have a duty to control the conduct of third persons on their premises
when they have the opportunity to control such persons and are
reasonably aware of the need for such control’ ” (Lasek v Miller, 306
AD2d 835, 835, quoting D’Amico v Christie, 71 NY2d 76, 85).
Nevertheless, we conclude that the grandfather met his initial burden
on the motion with respect to his allegedly negligent supervision of
plaintiff’s son by submitting evidence that the grandfather had no
reason to perceive a need to control plaintiff’s son, and plaintiff
failed to raise a triable issue of fact in opposition (see generally
Zuckerman, 49 NY2d at 562).

     We further conclude, however, that the court properly denied that
part of the grandfather’s motion seeking summary judgment dismissing
the negligent entrustment cause of action against him. We reject the
grandfather’s contention that his actions merely furnished the
occasion by which the accident was made possible, i.e., his actions
were not a proximate cause of the accident. “Questions concerning . .
. proximate cause are generally . . . for the jury” (Prystajko v
Western N.Y. Pub. Broadcasting Assn., 57 AD3d 1401, 1403 [internal
quotation marks omitted]). The grandfather failed to establish as a
matter of law that his actions in permitting plaintiff’s son and the
father of the children, defendant Scott Kolodziejczak, to operate the
splitter on the grandfather’s property in the presence of plaintiff’s
daughter were not a proximate cause of the accident.

     Kolo contends that the court erred in denying its cross motion
for, inter alia, summary judgment dismissing the amended complaint and
cross claim against it because Kolo did not owe a duty of care to
plaintiff’s daughter. We agree, and we therefore further modify the
order accordingly. “[B]efore a defendant may be held liable for
negligence it must be shown that the defendant owes a duty to the
plaintiff” (Pulka v Edelman, 40 NY2d 781, 782, rearg denied 41 NY2d
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                                                         CA 10-01884

901; see Clementoni v Consolidated Rail Corp., 30 AD3d 986, 987, affd
8 NY3d 963). “The existence and scope of an alleged tortfeasor’s duty
is, in the first instance, a legal question for determination by the
courts” (Sanchez v State of New York, 99 NY2d 247, 252; see Galasso v
Wegmans Food Mkts., Inc., 53 AD3d 1145).

     With respect to the negligent supervision cause of action against
Kolo, a special relationship such as a master-servant relationship may
give rise to a duty to control the conduct of another (see Purdy v
Public Adm’r of County of Westchester, 72 NY2d 1, 8, rearg denied 72
NY2d 953). Here, however, because the negligent supervision cause of
action against the grandfather must be dismissed and the grandfather
is the only link between Kolo and the accident, Kolo cannot be held
liable to plaintiff under a theory of negligent supervision.

     With respect to the negligent entrustment cause of action against
Kolo, we note that “[t]he question of duty . . . is best expressed as
‘whether the plaintiff’s interests are entitled to legal protection
against the defendant’s conduct’ ” (Pulka, 40 NY2d at 782). We
conclude that Kolo met its initial burden by submitting the
grandfather’s affidavit in which he indicated that the accident
occurred during his personal pursuit on property with which Kolo had
no involvement (see generally Zuckerman, 49 NY2d at 562). In
opposition to the cross motion, plaintiff failed to raise a triable
issue of fact whether Kolo had any involvement in the accident (see
generally id.).

     All concur except CARNI and MARTOCHE, JJ., who dissent in part and
vote to reverse the order insofar as appealed from in accordance with
the following Memorandum: 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 plaintiff’s 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 plaintiff’s
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). 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
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                                                        CA 10-01884

NY2d 647, 653; see LaTorre v Genesee Mgt., 90 NY2d 576, 581). We
cannot conclude that the evidence supports the determination that the
grandfather entrusted a dangerous instrument, i.e., the log splitter
(splitter), to plaintiff’s 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 plaintiff’s 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 plaintiff’s
son.




Entered:   April 1, 2011                       Patricia L. Morgan
                                               Clerk of the Court
