O'Callaghan v. Flitter
| Decision Date | 19 August 1985 |
| Citation | 112 A.D.2d 1030,493 N.Y.S.2d 28 |
| Parties | Edward G. O'CALLAGHAN, et al., Appellants, v. Ruth FLITTER, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Benjamin Rubenstein, P.C., White Plains (Bernard Meyerson, New York City, of counsel), for appellants.
Francis J. Young, P.C., Hartsdale (Thomas H. McKenna, Hartsdale, of counsel), for respondent.
Before GIBBONS, J.P., and NIEHOFF, RUBIN and KUNZEMAN, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damag for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Westchester County, dated October 5, 1984, which denied their motion for partial summary judgment on the issue of liability and for an assessment of damages.
Order reversed, on the law, with costs, motion granted, and matter remitted to the Supreme Court, Westchester County, for an assessment of damages.
Defendant hit plaintiffs' parked car from the rear, and admittedly "pushed the trunk lid in". At the time, the car was parked at a pickup point outside a supermarket, where the plaintiff driver was waiting for his wife to come out of the store. By demonstrating the foregoing, plaintiffs created a prima facie case of liability on the part of the defendant requiring an explanation. At an examination before trial, defendant testified that prior to the impact she had been driving at 5 to 10 miles per hour in the supermarket parking lot in a driving rainstorm. Although defendant's testimony concerning the exact point at which she first saw plaintiffs' parked car was inconsistent, i.e., she alternately stated that it was "two feet" away and between two and three car lengths away, her testimony concerning the cause of the impact did not vary. She testified, .
We acknowledge that summary judgment is a rare event in negligence cases; however, plaintiffs are entitled to summary judgment where, as here, "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 * * * was not really involved" (Andre v. Pomeroy, 35 N.Y.2d 361, 365, 362 N.Y.S.2d 131, 320 N.E.2d 853).
Defendant's testimony that she did everything that she was supposed to do, and that her car...
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