Supreme Court, New York County, April 24, 2020

Eustace, Prezioso & Yapchanyk, New York City (Miles A. Linefsky of counsel), for Paul LeClerc and another, defendants.

David H. Gendelman, New York City, for plaintiff.

I. Background

Plaintiff, an ophthalmologist, seeks damages for personal injuries she suffered October 23, 2018, when defendant Adam LeClerc kicked her during an eye examination in his apartment, arranged by his parents, defendants Paul LeClerc and Judith Ginsburg. Defendant parents move for summary judgment dismissing the complaint against them (CPLR 3212 [b]) claiming they owed no duty to plaintiff and were unaware of their adult son's dangerous propensities. Plaintiff claims defendant parents knew of their son's aberrant and violent behavior, yet failed to warn plaintiff in advance, and thus contributed to her injury.

II. Circumstances under Which Defendant Parents May be Liable for Their Adult Son's Conduct

Ordinarily, parents may not be held liable for the conduct of their adult child, even an adult child with disabilities. (Rios v Smith, 95 NY2d 647, 652 [2001]; LaTorre v Genesee Mgt., 90 NY2d 576, 582 [1997]; Fox v Marshall, 88 AD3d 131, 140 [2d Dept 2011].) Plaintiff bears a heavy burden to sustain her claim of defendant parents' liability. She must show that defendant parents exercised care or control of their son, even though he [*2]was an adult; knew of their adult son's dangerous tendencies; and, through their own conduct, created a particularized foreseeable danger to plaintiff from their son's conduct. (Rios v Smith, 95 NY2d at 652; LaTorre v Genesee Mgt., 90 NY2d at 584; see Lanzetta v Madori, 55 AD3d 376, 376 [1st Dept 2008].) If defendant parents maintained the ability to control their son's conduct, which exposed plaintiff to harm, defendant parents owed a duty to protect plaintiff from his conduct. (Fox v Marshall, 88 AD3d at 136-137.)

Defendant parents admit that they scheduled their son's appointment with plaintiff and requested that it take place in his apartment, instead of plaintiff's medical office, evincing their care or control of their son's encounter with plaintiff, and raising the inference that their son's behavior required that their son remain in a controlled setting. This admission also raises the inference that defendant parents knew of their son's aberrant behavior. In direct contradiction to Ginsburg's affidavit denying her knowledge of her son's dangerous propensities,{**69 Misc 3d at 646} moreover, plaintiff attests that, during Ginsburg's own prior appointment with plaintiff, Ginsburg admitted her son's behavioral problems and her relief upon having found a caretaker to live with their son in a separate apartment. The mother's knowledge in turn raises the inference that her husband possessed comparable knowledge. It is also undisputed that a nurse, an aide, and a cook assigned by the New York State Office for People with Developmental Disabilities were in Adam LeClerc's apartment, facts of which his parents likely were aware, indicating that they must have known of their son's incapacities, abnormal behavior, and need for supervision.

Finally, by requesting that plaintiff come to Adam LeClerc's apartment to examine and treat him, defendant parents created an encounter where, if their son's behavior was uncontrolled, it posed a particularized foreseeable danger to plaintiff. (Rios v Smith, 95 NY2d at 652; LaTorre v Genesee Mgt., 90 NY2d at 584; Fox v Marshall, 88 AD3d at 140; see Lanzetta v Madori, 55 AD3d at 376; DeRosa v Smith, 286 AD2d 363, 363 [2d Dept 2001].) Defendant parents were capable of preventing or controlling such an encounter. (Rios v Smith, 95 NY2d at 653; Fox v Marshall, 88 AD3d at 136-137, 139-140; see Rivers v Murray, 29 AD3d 884, 885 [2d Dept 2006]; Davies v Incorporated Vil. of E. Rockaway, 272 AD2d 503, 504 [2d Dept 2000].)

III. The Need for Disclosure

CPLR 3212 (f) permits the court to deny summary judgment when "facts essential to justify opposition may exist but cannot then be stated." (CPLR 3212 [f]; Jackson v Hunter Roberts Constr. Group, LLC, 161 AD3d 666, 667 [1st Dept 2018]; Figueroa v City of New York, 126 AD3d 438, 439 [1st Dept 2015]; see Baghban v City of New York, 140 AD3d 586, 586 [1st Dept 2016].) Plaintiff must demonstrate that further disclosure may lead to relevant evidence that will defeat the motion and that facts necessary to oppose the motion are exclusively within defendants' knowledge and control. (CPLR 3212 [f]; Jackson [*3]v Hunter Roberts Constr. Group, LLC, 161 AD3d at 667; Stern v Starwood Hotels & Resorts Worldwide, Inc., 149 AD3d 496, 497 [1st Dept 2017]; Solano v Skanska USA Civ. Northeast Inc., 148 AD3d 619, 620 [1st Dept 2017].)

Plaintiff demonstrates that defendants' motion for summary judgment is premature by identifying relevant disclosure from defendants that remains outstanding and is necessary to oppose defendant parents' motion. (Paramount Ins. Co. v Federal {**69 Misc 3d at 647}Ins. Co., 174 AD3d 476, 477 [1st Dept 2019]; Guzman v City of New York, 171 AD3d 653, 653 [1st Dept 2019]; Reid v City of New York, 168 AD3d 447, 448 [1st Dept 2019].) To rebut defendant parents' claim that they were unaware of their son's violent tendencies or physical assault on anyone before October 23, 2018, plaintiff needs Adam LeClerc's school, mental health, and medical records; defendants' depositions; a mental examination of Adam LeClerc; and possibly a physical examination of him to identify any lack of motor control. The nurse, aide, and cook in his apartment assigned by the Office for People with Developmental Disabilities may possess relevant knowledge regarding defendant parents' knowledge of their son's incapacities, abnormal behavior, and need for supervision, as well as their care or control of their son. Plaintiff also maintains that production of the lease for the apartment may show that defendant parents rented it for their son and thus invited plaintiff into the parents' apartment that the parents knew was a dangerous environment. (Fox v Marshall, 88 AD3d at 140.)

Before the court determines defendant parents' motion for summary judgment, plaintiff must be afforded the opportunity, at minimum, to obtain relevant documents and depose defendants and the other witnesses in Adam LeClerc's apartment with personal knowledge of the relevant facts outlined above. The records plaintiff seeks and the deponents' testimony may lead to relevant evidence that would defeat defendants' motion. (Guzman v City of New York, 171 AD3d at 653; Jackson v Hunter Roberts Constr. Group, LLC, 161 AD3d at 667; Solano v Skanska USA Civ. Northeast Inc., 148 AD3d at 620; Burke v Yankee Stadium, LLC, 146 AD3d 720, 721 [1st Dept 2017].)

IV. Conclusion

For the reasons explained above, the court denies the motion by defendants Paul LeClerc and Judith Ginsburg for summary judgment. (CPLR 3212 [f].)