Di Sabato v. Soffes

• Decision Date: 24 November 1959
• Citation: 193 N.Y.S.2d 184,9 A.D.2d 297
• Parties: Marion DI SABATO, an infant, by her Guardian ad Litem, Marco Di Sabato, and Marco Di Sabato, and Patricia Pescatore, an infant, by her Guardian ad Litem, Archangelo Pescatore, and Archangelo Pescatore, Plaintiffs-Appellants, v. Robert SOFFES and Allen Grubetz, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 184

193 N.Y.S.2d 184

9 A.D.2d 297

Marion DI SABATO, an infant, by her Guardian ad Litem, Marco

Di Sabato, and Marco Di Sabato, and Patricia Pescatore, an infant, by her Guardian ad Litem, Archangelo Pescatore, and Archangelo Pescatore, Plaintiffs-Appellants, v. Robert SOFFES and Allen Grubetz, Defendants-Respondents.

Supreme Court, Apellate Division, First Department.

Nov. 24, 1959.

Louis Jay Brecher, New York City, for plaintiffs-appellants.

A. Harold Frost, New York City, of counsel (Emile Z. Berman, New York City, on the brief; Russell B. Greaves, New York City, attorney), for defendants-respondents.

Before BOTEIN, P. J., and BREITEL, RABIN, M. M. FRANK and McNALLY, JJ.

M. M. FRANK, Justice.

In this action for personal injuries, the plaintiffs appeal from an order denying their motion, made pursuant to Rule 113 of the Rules of Civil Practice, for summary judgment striking out the defendants' answer and directing an assessment of damages.

At the outset it should be stated that there is no claim that the plaintiffs were contributorily negligent. Nor could there be such a claim on the facts in the case.

The plaintiffs were employed as counter girls in a drug store which was located at the corner of two intersecting streets. At the time of the accident they were stationed between the counter and a glass and brick wall which formed the outer shell of the building.

It is not disputed that a 1957 Chrysler owned by the defendant, Soffes, and in charge of his brother-in-law, the defendant Grubetz, careened under its own power from a point diagonally across the street from the store and 50 or 60 feet distant therefrom, while Grubetz was out of the car and not at its wheel. The car traveled through the intersection with such speed and force that, after hitting a parking meter standchion, it mounted the sidewalk and crashed into and partially through the outer wall of the store. It demolished a section of the wall and dislodged coffee urns and window cases. This equipment, in turn, felled the plaintiffs, who were rendered unconscious and removed to the hospital in that condition.

We are enjoined by the Rule to grant the motion, 'if upon all the papers and proof submitted, the action or claim * * * shall be established sufficiently to warrant the court as a matter of law in directing judgment, interlocutory or final'.

The recent amendment to Rule 113 extended it to include actions grounded in negligence. However, the change was not intended to vary the basic principles which have evolved since the inception of the Rules of Civil Practice in 1921.

One of the recognized purposes of summary judgment is to expedite the disposition of civil cases where no issue of material fact is presented to justify a trial. While the courts are cautioned to exercise the power to summarily direct judgment with full recognition that a party with a just claim or a valid defense is entitled to his day in court, timidity in exercising the power in favor of a legitimate claim and against an unmerited one, not alone defeats the ends of justice in a specific case, but contributes to calendar congestion which, in turn, denies to other suitors their rights to prompt determination of their litigation. ¹

On a motion such as this, the Court is called upon to determine whether a bona fide issue exists. If the plaintiff's pleadings and other papers disclose no real defense and if the defendant fails to controvert such proof and establish by affidavits or other evidence the existence of a genuine defense, the Court may find that no triable issue exists and grant summary judgment (General Investment Co. v. Interborough Rapid Transit Co., 235 N.Y. 133, 142-143, 139 N.E. 216, 219-220).

In the first case to reach this Court after the adoption of the Rule (Dwan v. Massarene, 199 App.Div. 872, 880, 192 N.Y.S. 577, 582 ²), it was said, 'The defendant must show that he has a bona fide defense to the action, one which he may be able to establish. It must be a plausible ground of defense, something fairly arguable and of a substantial character. This he must show by affidavits or other proof. He cannot shelter himself behind general or specific denials * * *. He must show that his denial or his defense is not false and sham, but interposed in good faith and not for delay.'

In the intervening years, the decisions have not varied these prime rules. The inquiry must be directed to ascertain whether the defense is genuine or unsubstantiated. 'A shadowy semblance of an issue' is not enough (Hanrog Distributing Corp. v. Hanoiti, 10 Misc.2d 659, 660, 54 N.Y.S.2d 500, Shientag, J.) Only recently, in affirming this Court, the Court of Appeals reiterated that, 'If the issue claimed to exist is not 'genuine, but feigned, and * * * there is in truth nothing to be tried' summary judgment is properly granted.' Rubin v. Irving Trust Co., 305 N.Y. 288, 306, 113 N.E.2d 424, 432. It is incumbent on the Court, therefore, to search the proof, if any, as proffered by affidavits or otherwise, to ascertain whether it discloses a real issue, rather than a formal, perfunctory, or shadowy one. If, as here, the question is solely one of the defendants' liability, is there a sufficient factual demonstration to substantiate the purely formal denial of liability in the pleading to warrant a conclusion that it is genuine enough to create an issue rather than the semblance of one?

With these principles in mind, we turn to the case at hand. The defendants have failed to submit a single affidavit, by anyone having knowledge of the facts, to controvert the prima facie showing of negligence which flows from the occurrence together with the examination before trial. A defendant is not privileged on a motion for summary judgment to ignore the rule that he must submit proof of a defense, for there must be compliance with the requirements enunciated in General Investment v. Interborough Rapid Transit Co. and Dwan v. Massarene both quoted hereinabove. See also Hanna v. Mitchell, 202 App.Div. 504, 514, 196 N.Y.S. 43, 52; Graymount v. Schlemmer, 283 App.Div. 859, 130 N.Y.S.2d 156; Gnozzo v. Marine Trust Co. of Buffalo, 258 App.Div. 298, 17 N.Y.S.2d 168; Hanrog Distributing Corp. v. Hanioti, 10 Misc.2d 659, 54 N.Y.S.2d 500, supra; Shientag, Summary Judgment, Ch. 12.

It is incumbent upon a defendant who opposes a motion for summary judgment to assemble, lay bare and reveal his proofs, in order to show that the matters set up in his answer are real and are capable of being established upon a trial. Dodwell & Co. Ltd. v. Silverman, 234 App.Div. 362, 254 N.Y.S. 746. An opposing affidavit by an attorney without personal knowledge of the facts has no probative value and should be disregarded (Barnet v. Horwitz, 278 App.Div. 700, 103 N.Y.S.2d 105; Cohen v. Pannia, 7 A.D.2d 886, 181 N.Y.S.2d 220).

The plaintiffs rely upon the undisputed physical facts of the accident and the examination before trial of the defendant Grubetz. There is no question that Grubetz drove the car to the intersection hereinbefore described. The stated purpose for which it was brought to a stop was to permit Grubetz's mother, aged 63 or 64 to alight. In the car at the time was his four-year-old nephew, seated between him and his mother who occupied the right side of the front seat. Grubetz testified, and the defendants concede, that he left the motor running and the ignition key turned on when he quit the driver's seat. The car was equipped with an 'automatic' gear shift controlled by a series of push buttons grouped on the left-hand side of the dashboard or instrument panel.

Grubetz stated that he set the emergency brake, pushed the 'neutral' button, opened the left-front door, stepped to the street, walked around the rear of the car, and attempted to open the right-front door. However, for some reason completely unexplained by the defendants, it could not be opened. Grubetz then returned to the left side of the car, stood alongside the open door and directed his mother to leave the vehicle through that exit. His nephew jumped over the front seat into the rear space (no claim is made by the defendants that he dislodged any part of the operating mechanism) and the elderly woman started to move over to the left-front door for the purpose of alighting on that side.

As already indicated, the only affidavit submitted in opposition was made by the defendants' trial counsel who has no personal knowledge of the facts. That paper emphasizes the denials contained in the answer and then the affiant proceeds to argue, much as one does in a brief, from quoted portions of the examination before trial. In that fashion, the defendants contend that there is an issue of fact. To support their position, they rely upon Grubetz's assertion that he set the emergency brake and urge that the conduct of the mother was an intervening act for which the defendants are not responsible.

While Grubetz's assertion that he set the brake is stressed, if that is the fact, we are not told why the car moved. Instead, we are asked to infer that the brake was not defective even though the car traveled not haltingly and with power retarded, as one does with a good brake unreleased, but with sufficient impetus to cause considerable property damage. Since there is no dispute that the car crossed the intersection under its own power, the inference that the defendants are absolved because Grubetz set the brake is unsupportable and creates no issue of fact. With every reasonable inference favorable to the defendants drawn from the facts, the only conclusions that follow are that he did not properly set the brake, or, if he did, that it was defective, or that his mother released it.

The defendants offer no proof to establish the condition of the brake or that the mother released it. Grubetz's description of the manner in which his mother proceeded to leave indicates that she did not slide across the seat as one might normally do, but attempted...