Appel v. Root
| Decision Date | 17 December 1962 |
| Citation | 18 A.D.2d 686,236 N.Y.S.2d 5 |
| Parties | Oscar APPEAL, Rae Appel, Leonard Potash and Arline Potash, Respondents, v. Rhoda ROOT, Appellant. |
| Court | New York Supreme Court — Appellate Division |
James A. Doherty, New York City, for appellant; Joseph S. Catalano, New York City, of counsel.
Paul Gewurz, New York City, for respondent.
Before UGHETTA, Acting P. J., and KLEINFELD, CHRIST, BRENNAN and RABIN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injury, defendant appeals from a resettled order of the Supreme Court, Kings County, dated July 11, 1962, which granted plaintiffs' motion for summary judgment and directed an assessment of damages, pursuant to rule 113 of the Rules of Civil Practice.
Order affirmed, with ten dollars costs and disbursements.
Plaintiffs were passengers in an automobile owned and operated by defendant. It appears, without dispute, that defendant brought the vehicle to a stop to permit her husband to alight in order to purchase a newspaper; that she kept the motor running and the car in gear; and that when he reentered the car it suddenly shot forward because defendant's foot evidently slipped from the brake to the accelerator. It also appears, without dispute, that the automobile proceeded about a quarter of a block and collided with a parked car; that defendant at no time applied either the foot brake or the emergency brake; and that she 'panicked' and 'did not know what to do' and was looking down for the emergency brake when the accident occurred.
While summary judgment may not be warranted merely because the driver's foot slipped from the brake to the accelerator (cf. Feldman v. Lashine, 10 N.Y.2d 964, 224 N.Y.S.2d 282, 180 N.E.2d 62), that is not the only evidence of negligence in the instant case. In our opinion, on the undisputed proof as to the manner in which defendant operated her motor vehicle after its initial sudden start, the inference of negligence is inescapable and there is no triable issue as to liability (cf. Gerard v. Inglese, 11 A.D.2d 381, 206 N.Y.S.2d 879).
Ordinarily we would have been inclined to concur with the majority for the granting of summary judgment. Here, however, we have an unusual family situation which requires the denial of summary judgment.
The record discloses that the...
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...in the absence of an explanation consistent with reasonable care (Gerard v. Inglese, 11 A.D.2d 381, 206 N.Y.S.2d 879; Appel v. Root, 18 A.D.2d 686, 236 N.Y.S.2d 5). BELDOCK, P. J., and BRENNAN, HILL and RABIN, JJ., UGHETTA, J., concurs, adhering however, to the views expressed in the dissen......