Forse v. Turner

• Decision Date: 28 November 1967
• Citation: 284 N.Y.S.2d 995,55 Misc.2d 248
• Parties: Donald A. FORSE, Administrator of the Goods, Chattels and Credits of Bernard J. Forse, Deceased, Plaintiff, v. Donald L. TURNER, William P. Metzar, John Metzar, and Don Owen Pontiac, Inc., Defendants.
• Court: New York Supreme Court

Page 995

284 N.Y.S.2d 995

55 Misc.2d 248

Donald A. FORSE, Administrator of the Goods, Chattels and Credits of Bernard J. Forse, Deceased, Plaintiff, v. Donald L. TURNER, William P. Metzar, John Metzar, and Don Owen Pontiac, Inc., Defendants.

Supreme Court, Special Term, Broome County.

Nov. 28, 1967.

Travis & Johnson, Binghamton, for plaintiff.

Coughlin, Dermody & Guy, Binghamton, for defendant, Don Owen Pontiac, Inc.

DECISION

HOWARD A. ZELLER, Justice.

Defendant, Don Owen Pontiac, Inc., moves to dismiss the complaint in this action upon the ground it fails to state a cause of action against said corporate defendant.

On May 7, 1966 plaintiff's intestate, Bernard J. Forse, was a passenger in a 1965 MG auto being operated by defendant William P. Metzar. It was registered in New York State to defendant John Metzar and owned by him. The Metzar vehicle collided with an auto owned and operated by defendant Donald L. Turner. As a result of the collision, passenger Forse was injured and shortly thereafter died. This action is for wrongful death and conscious pain and suffering.

The complaint alleges that on March 22, 1965 defendant corporation sold a 1965 MG auto which had been manufactured or assembled after June 30, 1964; that neither then or on the date of the accident was it equipped with front seat safety belts or anchorage units for the installation of such belts. Apparently the auto was sold to one Cummings who, in March 1966, sold it to defendant John Metzar.

The complaint further alleges the MG auto was sold by the corporate defendant contrary to section 383(a) of the Vehicle and Traffic Law as it was neither equipped with sufficient anchorage units for attaching front seat safety belts nor equipped with front seat safety belts. The complaint also alleges that the injuries and resulting death of plaintiff's intestate were caused by the negligence of the two operators 'concurring with the violation of defendants Metzar and Don Owen Pontiac, Inc. of their statutory duty * * *.'

Vehicle and Traffic Law section 383(a) reads in part, 'Every motor vehicle registered in this state and manufactured or assembled after June thirtieth, nineteen hundred sixty-two, shall be equipped with sufficient anchorage units at the attachment points for attaching at least two sets of safety seat belts for the front seat of the motor vehicle * * *. Every motor vehicle registered in this state and manufactured or assembled after June thirtieth, nineteen hundred sixty-four and designated as a 1965 or later model, shall be equipped with at least two sets of seat safety belts for the front seat of the motor vehicle. * * *'

Plaintiff Claims section 383(a) placed a statutory duty upon Don Owen Pontiac, Inc., an authorized seller of MG vehicles, to have had the 1965 MG equipped with anchorage units and safety seat belts. He further argues that...