Andre v. Pomeroy

Decision Date21 November 1974
Parties, 320 N.E.2d 853 Diane P. ANDRE, Appellant, v. Jean S. POMEROY, Respondent, et al., Defendants.
CourtNew York Court of Appeals Court of Appeals

Arthur N. Seiff and George A. Berkowitz, New York City, for appellant.

Gerald E. McCloskey and Rocco Conte, White Plains, for respondent.


Plaintiff in this personal injury action claims that she is entitled to summary judgment. We agree that on the facts of this particular case the motion should be granted.

The facts are uncontested. On November 6, 1969 the defendant, Jean Pomeroy, was driving her car on North Broadway in White Plains. It was early in the morning, and the traffic was heavy or as the defendant herself stated 'The traffic is turning here, turning there, turning somewhere else. I'm watching the car ahead of me.'

The car directly in front of her was owned by August Pitou. Mrs. Pomeroy followed the Pitou vehicle for approximately 200 feet and '(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.' The defendant made no effort to turn her wheel to the right or left and her car crashed 'straight on' into the rear of the Pitou vehicle, which at that time was either stopped or moving very slowly. As the cars collided, the defendant's daughter--the plaintiff in this action--who had been reading in the rear of the defendant's car, was thrust against the front seat and sustained injuries to her face, neck, back and knees.

At the scene of the accident the defendant admitted that the collision occurred in this manner, and she later filed an accident report to the same effect. After the plaintiff commenced this suit the defendant repeated this version at an examination before trial and the plaintiff moved for summary judgment. Special Term denied the motion because 'the relationship between the plaintiff and the above named defendant, to wit, mother and daughter, create(s) issues which, despite the examination before trial, must await a plenary hearing.' The Appellate Division affirmed without opinion. Justice Shapiro dissented because in his opinion 'there is not the semblance of a triable issue.'

On the appeal now before us--by leave of the Appellate Division--the defendant argues that summary judgment was properly denied because the negligence issue is essentially a jury question.

Summary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law. Since it deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Millerton Agway Co-op. v. Briarcliff Farms, 17 N.Y.2d 57, 268 N.Y.S.2d 18, 215 N.E.2d 341). But when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated.

Negligence cases, supplying the bulk of the Trial Calendar, are not exempt from this general policy. There is, in short, no absolute prohibition against granting summary judgment in such cases, as there was at one time in this State (see 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3212.03). CPLR 3212 now permits summary judgment 'in any action' 1 and that includes personal injury suits (Whitely v. Lobue, 24 N.Y.2d 896, 301 N.Y.S.2d 635, 249 N.E.2d 476).

The statute directs that 'The motion shall be granted if, upon all the papers and proof submitted, the cause of action * * * shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.' (CPLR 3212, subd. (b).) Normally, if the facts are uncontested summary judgment is appropriate. However, this is not always so in negligence suits, because even when the facts are conceded there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances. This can rarely be decided as a matter of law.

Thus as a practical matter summary judgment continues to be a rare event in negligence cases. But this does not mean that the court is obliged, on policy grounds, to ferret out speculative issues 'to get the case to the jury,' where the trial may disclose something the pretrial proceedings have not. It simply means, as one learned treatise observes, that when the suit is founded on a claim of negligence, the plaintiff will generally be entitled to summary judgment 'only in cases in which there is no conflict at all in the evidence, the defendant's conduct fell far below any permissible standard of due care, and the plaintiff's conduct either was not really involved (such as with a passenger) or was clearly of exemplary prudence in the circumstances.' (4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3212.03, op. cit.).

This is one of those rare cases which is ripe for summary judgment. There is no claim that the plaintiff was contributorily negligent, and indeed there could be none on this record since it is conceded that the plaintiff was simply sitting in the rear of the defendant's car, reading, at the time of the collision. As to the defendant's negligence, that was conclusively established by her own uncontested admission that while driving in heavy traffic she took her eyes from the road, to search for something in her purse, and drove directly into the car in front of her. 2 This could not be considered reasonable conduct under any standard and it does not take a trial to resolve that point.

The order of the Appellate Division should be reversed and the plaintiff's motion for summary judgment granted. The certified question should be answered in the negative.

BREITEL, Chief Judge (dissenting).

I dissent and would affirm the order of the Appellate Division. Defendant Pomeroy's negligence was not established as a matter of law, the only basis for granting summary judgment.

Professor Siegel has stated succinctly: 'The very question of whether the defendant's conduct amounts to 'negligence' is inherently a question for the fact-trier in all but the most egregious instances. Even the so-called 'rear-end' collision, the one most presumptively favorable to the plaintiff, can readily be shown to present factors necessitating trial' (Siegel, Practice Commentary to CPLR 3212, C3212:8, McKinney's Consol. Laws of N.Y., Book 7B, p. 430; see, also, Hajder v. G. & G. Moderns, 13 A.D.2d 651, 213 N.Y.S.2d 880; 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3212.03). The rule of course is especially applicable to automobile collision cases.

Indeed, appellate courts, recognizing the presence of issues of fact, have regularly denied summary judgment relief in rear-end collision cases (see, e.g., Guigliano v. Basirico, 33 A.D.2d 1045, 308 N.Y.S.2d 815; Bullard v. Graham, 33 A.D.2d 550, 304 N.Y.S.2d 492; Velten v. Kirkbridge, 20 A.D.2d 546, 245 N.Y.S.2d 428; Colosino v. Rosenstock, 15 A.D.2d 663, 223 N.Y.S.2d 736; Poulter v. Masullo, 13 A.D.2d 674, 213 N.Y.S.2d 548; Kind v. Barone, 12 A.D.2d 625, 208 N.Y.S.2d 147; Block v. Acerra, 12 A.D.2d 525, 207 N.Y.S.2d 845; see, a fortiori, Small v. Tyres, 33 A.D.2d 1055, 308 N.Y.S.2d 730 (defendant's unattended automobile rolled downhill); Schneiderman v. Metzger, 30 A.D.2d 829, 292 N.Y.S.2d 570 (defendant, looking at traffic light in distance, hit plaintiff's car in rear); cf. Blixton v. MacNary, 23 A.D.2d 573, 574, 256 N.Y.S.2d 362, 363 (defendant, who admitted fault, driving on wrong side of road, collided head-on with plaintiff's car); Cicero v. Clark, 23 A.D.2d 583, 256 N.Y.S.2d 705 (defendant fell asleep at wheel); Schneider v. Miecznikowski, 16 A.D.2d 177, 226 N.Y.S.2d 944 (defendant, traveling at between 40 and 50 miles per hour, shifted car into reverse); Donahue v. Romahn, 10 A.D.2d 637, 196 N.Y.S.2d 887 (defendant driver fell asleep or 'blacked out'); Hatch v. King, 33 A.D.2d 879, 307 N.Y.S.2d 515 (plaintiff's car struck parked car in rear, directed verdict denied); contra, Opalek v. Oshrain, 33 A.D.2d 521, 305 N.Y.S.2d 675 (facts as in this case but defendant admitted fault)).

The crucial question, which must be answered in the affirmative if plaintiff is to prevail, is whether defendant's conduct, under the circumstances, constituted negligence as a matter of law, that is, whether she failed to act as a reasonably prudent person would under the circumstances. And, in all but the most extraordinary instances, whether a defendant has conformed to the standard of conduct required by law is a question of fact (Sadowski v. Long Is. R.R. Co., 292 N.Y. 448, 455, 55 N.E.2d 497, 500; see Restatement, Torts, 2d, § 328B, subd. (b); Prosser, Torts (4th ed.), p. 207).

As the court stated in Sadowski v. Long Is. R.R. Co., 292 N.Y. 448, 455, 55 N.E.2d 497, 500, Supra 'Essentially, what is negligence in a given case is a question of fact. Each case depends upon its own peculiar circumstances. Decisions in other actions in which damages are sought for personal injuries furnish no criterion or guide for determination of what is or is not negligence in a particular case involving its own peculiar facts and circumstances. Under circumstances existing in one case the ordinary care required might not be the same as that required under other circumstances. Negligence arises from breach of duty and is relative to time, place and circumstances. Mink v. Keim, 291 N.Y. 300, 304, 52 N.E.2d 444, 446.'

Defendant, upon whose uncontradicted account plaintiff relies, described the collision in her motor vehicle accident report as follows: 'car No. 1 (defendant's vehicle) slowed down but was unable to stop in time because of wet road.' This description is consistent with her use of the term 'coasted' to characterize the motion of her vehicle prior to impact. She never...

To continue reading

Request your trial
1716 cases
  • J.P. Morgan Sec. Inc. v. Vigilant Ins. Co.
    • United States
    • New York Court of Appeals Court of Appeals
    • November 23, 2021
    ...a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" ( Andre v. Pomeroy , 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974] [emphasis added]).Even under the majority's rule that disgorgement of third-party gains to compensate v......
  • Wilson v. Sponable
    • United States
    • New York Supreme Court — Appellate Division
    • May 27, 1981
    ...the directions for supervision that he gave were reasonable is also a question for a finder of fact (see, Andre v. Pomeroy, 35 N.Y.2d 361, 369-370, 362 N.Y.S.2d 131, 320 N.E.2d 853). "The very question of whether the defendant's conduct amounts to 'negligence' is inherently a question for t......
  • Salinas v. Pratt Inst.
    • United States
    • New York Supreme Court
    • August 10, 2022 no doubt as to the absence of triable issues 39 of material fact (Kolivas v Kirchoff, 14 A.D.3d 493 [2005]; see also Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, t......
  • Magee v. Zeman
    • United States
    • New York Supreme Court
    • August 28, 2019
    ...the absence of any triable issues of fact (see Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141 [1978]; Andre v Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matte......
  • Request a trial to view additional results
4 books & journal articles
    • United States
    • Albany Law Review Vol. 84 No. 4, December 2021
    • December 22, 2021
    ...for historic wrongs in the early 2000's and their failure in the courts on limitations and other grounds). (243) See Andre v. Pomeroy, 320 N.E.2d 853, 858 (N.Y. 1974) (Breitel, J., dissenting) ("What would be negligence in retrospect is not negligence in prospect"); Glen Feinberg, What is t......
  • Special Cases
    • United States
    • James Publishing Practical Law Books Motor Vehicle Accidents
    • April 1, 2015
    ...that summary judgment, while not prohibited in negligence causes of action, is usually inappropriate in such cases. Andre v. Pomeroy, 35 N.Y.2d 361 (1974); Garcia v. Duggan, nc., 180 A.D.2d 579 (1st Dep’t. 1992). The case law has made it equally unmistakable that when considering such motio......
  • Pleading
    • United States
    • James Publishing Practical Law Books Litigating Employment Discrimination Cases. Volume 1-2 Volume 2 - Practice
    • May 1, 2023
    ...courts view summary judgment as a “drastic remedy” that deprives litigants of their right to a jury trial. See, e.g., Andre v. Pomeroy , 35 N.Y.2d 361, 364 (1974). 6. Jury Issues [§5:104] Conventional wisdom holds that the federal courts are not as favorable for plaintiffs as the state cour......
  • Standards of Care for Motorists
    • United States
    • James Publishing Practical Law Books Motor Vehicle Accidents
    • April 1, 2015
    ...driver’s liability. The Court of Appeals set the tone for granting summary judgment in rear-end collision cases in Andre v. Pomeroy , 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974). In Andre , the defendant was driving her car in heavy traffic. She testified, “The traffic is turning there, turning ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT