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DEFENDANT GRANDFATHER DID NOT HAVE A DUTY TO CONTROL HIS COLLEGE-AGE GRANDSON IN THIS ROAD RAGE INCIDENT, THEREFORE THE NEGLIGENCE ACTION WAS PROPERLY DISMISSED, HOWEVER THE AIDING-AND-ABETTING ASSAULT CAUSE OF ACTION AGAINST DEFENDANT GRANDFATHER SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined defendant Mancuso’s motion for summary judgment on the negligence cause of action was properly granted, but the motion for summary judgment on the aiding-and-abetting-assault cause of action should not have been granted. The action stemmed from a road rage incident. Defendant Mancuso was driving and his college-age grandson, Vaccaro, was a passenger. The grandson got out of the car and hit plaintiff in the face:

Mancuso established, prima facie, that he did not owe a duty to the plaintiff by virtue of the relationship Mancuso had with Vaccaro. The fact that Mancuso could have exercised control over Vaccaro, his college-aged grandson, did not create a duty to do so … . In addition, the mere fact that Vaccaro was a passenger in Mancuso’s vehicle did not create a duty on the part of Mancuso to control Vaccaro’s conduct … . …

To be liable for an assault under an aiding and abetting theory, a defendant must have committed some overt act, either by words or conduct, in furtherance of the assault … . Here, Mancuso established, prima facie, that he did not commit an overt act in furtherance of Vaccaro’s assault on the plaintiff … . In opposition, however, the plaintiff raised a triable issue of fact as to whether Mancuso’s actions preceding the assault constituted an overt act in furtherance of the assault … . McKiernan v Vaccaro, 2019 NY Slip Op 00267, Second Dept 1-16-19

 

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