55 Misc.2d 304, Tobin v. Grossman

Citation55 Misc.2d 304, 284 N.Y.S.2d 997
Party NameTobin v. Grossman
Case DateNovember 27, 1967

Page 304

55 Misc.2d 304

284 N.Y.S.2d 997

Philomena TOBIN, as Natural Parent and Guardian of Gregory Tobin, an infant, and Philomena Tobin, Plaintiffs,

v.

Stuart GROSSMAN, Defendant.

Supreme Court, Special Term, Albany County.

Nov. 27, 1967.

[284 N.Y.S.2d 998] Sanford Rosenblum, Albany, for plaintiffs (Eugene R. Spada, Albany, of counsel).

Donohue, Bohl, Clayton & Komar, Albany, for defendant.

LOUIS G. BRUHN, Justice.

This is a motion on behalf of the defendant 'for an Order dismissing the third cause of action contained in the plaintiff's complaint on the ground that said third cause of action fails to state a legal cause of action.'

The allegations germane to a determination of the instant motion are contained in paragraphs 'THIRTEENTH' and 'FOURTEENTH' of the complaint and are as follows:

'THIRTEENTH: That at the time and place of said accident

Page 305

wherein her said infant son was struck down, the plaintiff, Philomena Tobin, was present near the said public sidewalk and in close proximity to where her infant child was then walking; that it was under such circumstances that the defendant, Stuart Grossman, did then and there, in full view and presence of the plaintiff, strike and injure her infant child.

'FOURTEENTH: That as a result of said accident occurring in the presence and in close proximity to plaintiff Philomena Tobin, she was rendered and continues to be sick, sore, lame and disabled; that she sustained a severe shock to her nervous and physical systems; that she has become and now is mentally ill and disturbed and has undergone emotional and personality changes and a psychotic depressive reaction; that she has required and will be compelled to undergo medical, psychiatric, and hospital care and treatment in an endeavor to be cured of her said injuries * * *.'

A proper disposition of the instant motion requires an appraisal of the history of litigation of this character.

Such appraisal of necessity requires a beginning with the celebrated case of Mitchell v. Rochester Railway Co., 151 N.Y. 107, 45 N.E. 354.

In that case the plaintiff 'testified that from fright and excitement caused by the approach and Proximity of the team she became unconscious, and also that the result was a miscarriage, and consequent illness.' (pp. 108, 109, 45 N.E. p. 354.) (Emphasis supplied.)

[284 N.Y.S.2d 999] For a long time the bar generally...

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2 practice notes
  • 24 N.Y.2d 609, Tobin v. Grossman
    • United States
    • New York New York Court of Appeals
    • 24 Abril 1969
    ...cause of action was sustained at Special Term on motion by defendant to dismiss for insufficiency the third and relevant cause of action (55 Misc.2d 304, 284 N.Y.S.2d 997). The Appellate Division unanimously reversed and dismissed the cause of action (30 A.D.2d 229, 291 N.Y.S.2d 227). Takin......
  • 55 Misc.2d 248, Forse v. Turner
    • United States
    • 28 Noviembre 1967
    ...383(a) as placing the duty upon the seller of this 1965 auto to have had it equipped with anchorage units and safety seat belts. [284 N.Y.S.2d 997] When the Legislature by section 383 intended to place a duty upon a seller or dealer it has plainly said so. Subdivision (c) of section 383 exp......
2 cases
  • 24 N.Y.2d 609, Tobin v. Grossman
    • United States
    • New York New York Court of Appeals
    • 24 Abril 1969
    ...cause of action was sustained at Special Term on motion by defendant to dismiss for insufficiency the third and relevant cause of action (55 Misc.2d 304, 284 N.Y.S.2d 997). The Appellate Division unanimously reversed and dismissed the cause of action (30 A.D.2d 229, 291 N.Y.S.2d 227). Takin......
  • 55 Misc.2d 248, Forse v. Turner
    • United States
    • 28 Noviembre 1967
    ...383(a) as placing the duty upon the seller of this 1965 auto to have had it equipped with anchorage units and safety seat belts. [284 N.Y.S.2d 997] When the Legislature by section 383 intended to place a duty upon a seller or dealer it has plainly said so. Subdivision (c) of section 383 exp......