Feldman v. Lashine

• Decision Date: 30 November 1961
• Citation: 180 N.E.2d 62,10 N.Y.2d 964,224 N.Y.S.2d 282
• Parties: , 180 N.E.2d 62 Abraham FELDMAN, Respondent-Appellant, and John Guerra et al., Plaintiffs, v. Selma LASHINE, s/h/a Sima Lashline, Appellant-Respondent, and Bee S. Wolf, as Administratrix, Defendant-Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 282

224 N.Y.S.2d 282

10 N.Y.2d 964, 180 N.E.2d 62

Abraham FELDMAN, Respondent-Appellant, and John Guerra et al., Plaintiffs, v. Selma LASHINE, s/h/a Sima Lashline, Appellant-Respondent and Bee S. Wolf, as Administratrix, Defendant-Appellant.

Court of Appeals of New York.

Nov. 30, 1961.

Appeal from Supreme Court, Appellate Division, First Department, 13 A.D.2d 646, 213 N.Y.S.2d 910.

The prospective buyer of an automobile brought an action against the driver of the automobile, the prospective seller, and her husband for injuries sustained by the prospective buyer when the driver accidentally stepped on the accelerator while the automobile was parked with the engine running, so that the prospective buyer could examine the engine, and the prospective buyer was struck by the automobile.

The Supreme Court, New York County, rendered an order granting the prospective buyer's motion for summary judgment, and the prospective seller, her husband, and the administratrix of the deceased driver appealed.

The Appellate Division, 13 A.D.2d 646, 213 N.Y.S.2d 910, on April 25, 1961, modified the order on the law and the facts so as to deny the motion for summary judgment against the prospective seller of the automobile, and affirmed the order as modified, and held that there was a triable issue as to whether, at the time and the place of the accident, the automobile was being used with the consent and permission of the prospective seller. Steuer and Stevens, JJ., dissented in part.

The Appellate Division, 13 A.D.2d 917, 217 N.Y.S.2d 1021, granted motions for leave to appeal to the Court of Appeals, to the extent of certifying the question: 'Was the order of this Court, entered on April 25, 1961, modifying on the law the order of the Supreme Court, New York County, entered therein December 19, 1960, properly made?'

Appeals were taken to the Court of Appeals.

Grabow & Katz, New York City (Benjamin H. Siff, New York City, of counsel), for respondent-appellant.

Emanuel Morgenbesser, New York City (Sidney J. Loeb, New York City, of counsel), for appellant-respondent, Selma Lashine.

Hanlon & Dawe, New York City (Sidney A. Schwartz, New York City, of counsel), for appellant-respondent, Bee S. Wolf.

Order insofar as it affirms the grant of summary judgment against defendant Wolf reversed without costs. The motion for summary judgment should be denied in all respects for the reason that triable issues are presented. Question certified answered in the...