
    Francis X. Isabella, an Infant, by Yolanda Isabella, His Guardian ad Litem, Appellant, v. Stella Isabella et al., Respondents, et al., Defendants.
   —In a negligence action to recover damages for personal injury sustained by the infant plaintiff while he was residing with the defendants' Stella Isabella and Mario Isabella (who are husband and wife) for the purpose of their prospective legal adoption of him as their child — such adoption having been consummated less than five months after the accident and a few months prior to commencement of the action, the plaintiff appeals from an order of the Supreme Court, Queens County, dated October 26, 1962, which denied his motion made pursuant to rules 103, 109, 113 and 114 of the Rules of Civil Practice: (1) to strike out said defendants’ “ complete and special ” defense to the effect that at the time of the accident they stood in loco parentis to the plaintiff and, consequently, he was an unemancipated infant who lacked the legal capacity to sue them; and (2) for summary judgment in his favor against the said defendants Isabella. Order affirmed, without costs. No opinion. Christ, Brennan and Rabin, JJ., concur; Ughetta, Acting P. J., and Hill, J., concur as to the denial of summary judgment under rule 113, but dissent as to the denial under rules 103 and 109 — to strike out the defense as insufficient, and vote to reverse the order in this respect and to grant the motion to strike out the defense pursuant to rules 103 and 109, with the following memorandum: Plaintiff, an infant, was injured in an automobile collision while he was a guest passenger in an automobile operated by the defendant Stella Isabella and owned by her husband, the defendant Mario Isabella. It is established (by failure to deny averments in the moving affidavit) that when the said defendants took the infant plaintiff from the Angel Guardian Home in 1961 the Home retained authority over the person of the plaintiff; that the placement of the infant with the said defendants was on a trial basis; and that the care of the infant by said defendants was subject to the Home’s instructions and to the terms and conditions imposed by it. Such undefined status of the infant, but with the Home reserving unto itself the absolute dominion and control over him, obtained as of the time of the accident. Obviously, during this trial or probationary period, in view of such reservation of control by the Home, there was not — indeed there could not he — either a de facto or a de jure parent-and-child relationship between said defendants and the infant. In the absence of such a relationship at the time of the accident the asserted defense must fail.  