Andre v. Pomeroy

• Decision Date: 22 April 1974
• Citation: 354 N.Y.S.2d 685,44 A.D.2d 703
• Parties: Diane Pomeroy ANDRE, Appellant, v. Jean S. POMEROY, Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 685

354 N.Y.S.2d 685

44 A.D.2d 703

Diane Pomeroy ANDRE, Appellant, v. Jean S. POMEROY, Respondent, et al., Defendants.

Supreme Court, Appellate Division, Second Department.

April 22, 1974.

Before MARTUSCELLO, Acting P.J., and LATHAM, BENJAMIN, MUNDER and SHAPIRO, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Westchester County, dated January 26, 1973, which denied her motion for summary judgment against defendant Jean S. Pomeroy.

Order affirmed, without costs. No opinion.

MARTUSCELLO, Acting P.J., and LATHAM, BENJAMIN and MUNDER, JJ., concur.

SHAPIRO, J., dissents and votes to reverse and to grant the motion, with the following memorandum:

I recognize that appellate courts are reluctant to grant summary judgment in automobile negligence cases (McLaughlin v. Martin, 12 A.D.2d 789, 209 N.Y.S.2d 558; Serra v. Sosa, 35 A.D.2d 663, 314 N.Y.S.2d 472; Feldman v. Lashine, 13 A.D.2d 646, 213 N.Y.S.2d 910, revd. 10 N.Y.2d 964, 224 N.Y.S.2d 282, 180 N.E.2d 62), but where there are truly no issues of fact to be tried summary judgment should not be denied even in such cases (Slavinskas v. Clinton Warehouse, 40 A.D.2d 840, 337 N.Y.S.2d 337; Whitely v. Lobue, 59 Misc.2d 755, 300 N.Y.S.2d 907, revd. 30 A.D.2d 552, 291 N.Y.S.2d 791, revd. 24 N.Y.2d 896, 301 N.Y.S.2d 635, 249 N.E.2d 476; Gerard v. Inglese, 11 A.D.2d 381, 206 N.Y.S.2d 879).

Since I can discern not even the semblance of a triable issue, I vote to reverse the order appealed from, which denied plaintiff's motion for summary judgment, and to remand the case to the trial court for an assessment of damages, despite the fact that plaintiff is the daughter of respondent.

The only facts in this record are supplied by plaintiff's affidavit and the exhibits thereto annexed, since the affirmations of the attorneys in opposition should be disregarded as utterly without probative force, except to be treated as memoranda of law (V.A.W. of Amer. v. General Elec. Co., 38 A.D.2d 989, 329 N.Y.S.2d 468; D'Aquila Bros. Contr. Co. v. H.R.H. Constr. Corp., 35 A.D.2d 815, 317 N.Y.S.2d 247).

The following facts are undisputed:

(1) Respondent is the owner of the automobile in which plaintiff was a passenger at the time of the accident. Plaintiff was seated in the rear seat of the automobile studying her music.

(2) Respondent's car ran squarely into the car in front of her.

(3) The police aided card shows that At the scene of the accident respondent told the police officer that 'she was proceeding south on North Broadway & momentarily took her eyes off the road to reach for an object & collided with vehicle #2 who was also proceeding south on North Broadway at a slow rate of speed in heavy traffic.'

(4) At her examination before trial respondent testified that the accident happened as follows:

'Then I looked down for a second to get a compact out of my purse, and when I looked up again this car was closer to me than I thought, and I jumped on the brake.'

She also testified that when she jammed on her brakes she did not turn in either direction but hit the other car 'not right or left but completely straight on', with a 'heavy bang', and that as a result of the accident her 'car was declared a total loss.' At another point in the same examination she described the accident as follows:

'I looked down like this (indicating) to get the compact, then I looked up and saw I was right on this car, and I jumped on the brake'

and that the crash took place after she had traveled 'about a car length.'

(5) The day after the accident, plaintiff was seen by her doctor and he found her to be suffering from the following injuries:

(a) contusion of the left side of the face;

(b) contusion of the knees, areas below knees bilaterally;

(c) myalgia of the upper extremities with bilateral cervical muscle strain; and

(d) lumbo-sacral ligamentous strain.

The doctor further certified that when he examined her on May 18, 1970 'she was still complaining of pain and limited motion in her low neck and midlumbar area' and that 'flexion and extension in both these areas was limited at the extremes of such motion.' His diagnosis was that 'she suffered ligamentous strain of the neck and lumbar area with a remaining chronic strain in both areas.'

It is clear to me that upon this record plaintiff has made out a conclusive case of negligence and of her own freedom from contributory negligence and neither Special Term nor this court seems to contend otherwise. Special Term denied plaintiff's motion because in its opinion 'the relationship between the plaintiff and the above named defendant, to wit, mother and daughter, create issues which, despite the examination before trial, must await a plenary hearing.' I consider that kind of reasoning entirely specious. Subdivision (b) of CPLR 3212 provides in pertinent part that the 'motion (for...