Rosario v. Bann Housing Corp. , 633 N.Y.S.2d 947 ( 1995 )

—Order, Supreme Court, Bronx County (Anne Tar-gum, J.), entered on or about May 12, 1994, denying defendant-appellant’s motion to amend its answer to set forth counterclaims against plaintiffs’ parents, unanimously affirmed, without costs.

In the absence of evidence that the parents had a duty with respect to the painting of their rented apartment (see, Multiple Dwelling Law § 78; Administrative Code of City of NY § 27-2013 [h]) or otherwise affirmatively created the condition giving rise to the injury (see, Barocas v Woolworth Co., 207 AD2d 145, 149), the allegations of the proposed counterclaims are insufficient to overcome the rule prohibiting claims based on negligent parental supervision (Holodook v Spencer, 36 NY2d 35; compare, Alharb v Sayegh, 199 AD2d 229). Concur—Sullivan, J. P., Rosenberger, Asch and Nardelli, JJ.