Wallace v. Pacelli

Appeal from an order of the Supreme Court (Lynch, J.), entered October 18, 1994 in Schenectady County, which denied defendants’ motion to amend their answer to add a counterclaim.

Decedent, Jonathan A. Wallace, three years of age, was fatally injured when struck by defendants’ automobile. When the accident occurred the infant was chasing a ball into the cul-de-sac by his home. Plaintiffs, decedent’s parents, who were in the immediate vicinity at the time of the accident, commenced this action for their son’s wrongful death and for the pain and suffering endured by plaintiff Laurie J. Wallace, decedent’s mother, who assertedly was in the zone of danger. Defendants moved to amend their answer to add a counterclaim charging that plaintiffs’ negligence was the primary cause of the accident; their claimed negligence is that they did not keep decedent from playing in the street. Defendants appeal the denial of their motion. We affirm.

*779The gravamen of the counterclaim is negligent parental supervision of a child, which is not actionable (see, Holodook v Spencer, 36 NY2d 35, 48; Hlavinka v Slovak Sky Bungalow Colony, 203 AD2d 855). Defendants’ contrary view notwithstanding, a breach of no duty, apart from that stemming from the family relationship, has been alleged (see, Barocas v Woolworth Co., 207 AD2d 145; Walden v Rensselaer Polytechnic Inst, 116 AD2d 963).

Cardona, P. J., White, Casey and Spain, JJ., concur. Ordered that the order is affirmed, with costs.