Appellate Division of the Supreme Court of New York, 2011

Zarilla v. Pennachio

Zarilla v. Pennachio
Appellate Division of the Supreme Court of New York · Decided December 27, 2011
90 A.D.3d 1040; 934 N.Y.2d 858
Zarilla v. Pennachio

Cases that cite this one

3 later published cases cite this decision.

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

A parent owes a duty to protect third parties from harm that 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]; LaTorre v Genesee Mgt., 90 NY2d 576, 582 [1997]; Nolechek v Gesuale, 46 NY2d 332, 340 [1978]). “[I]tems that are commonly used by children, of suitable age in a manner consistent with their intended use, may not, as a matter of *1041law, be classified as dangerous instruments” (Rios v Smith, 95 NY2d at 653).

Here, the defendant made a prima facie showing of entitlement to judgment as a matter of law (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; cf. Nyhus v Valentino, 83 AD3d 802, 804 [2011]). Michael was of a suitable age to use the subject scooter, a toy manufactured for children between the ages of three to six. Further, Michael’s operation of the scooter was consistent with its intended use. In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint and denied, as academic, the plaintiffs’ cross motion for a trial preference. Rivera, J.E, Eng, Roman and Sgroi, JJ., concur.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.