Fitzgerald v. Sanitation Dist. No. 6, Town of Hempstead

Citation457 N.Y.S.2d 664,116 Misc.2d 325
PartiesWilliam FITZGERALD, Rosalie Fitzgerald, individually, and Rosalie Fitzgerald as Natural Parent of Joanne Fitzgerald and Carolyn Fitzgerald, infants under the age of 14 years, Plaintiffs-Appellants, v. SANITATION DISTRICT NO. 6, TOWN OF HEMPSTEAD and Peter Scarangella, Defendants-Respondents.
Decision Date17 November 1977
CourtNew York Supreme Court — Appellate Term

Jules B. St. Germain, Malverne, for plaintiffs-appellants.

Henri A. Demers, Jamaica, for defendants-respondents.

Before GLICKMAN, P.J., and PITTONI and SILBERMAN, JJ.

SLIP MEMORANDUM

DAVID L. GLICKMAN, Presiding Justice.

Order of the court below (89 Misc.2d 1078, 393 N.Y.S.2d 542) modified to the extent of striking the provisions requiring plaintiffs to appear at an examination, complaint reinstated, and as so modified, affirmed without costs.

The failure of the Legislature to include districts other than school and fire districts in section 50-h of the General Municipal Law indicates that the exclusion of other districts was intended. It is not for the courts to correct supposed errors, omissions or defects in legislation (Meltzer v. Koenigsberg, 302 N.Y. 523, 99 N.E.2d 679; Martin v. Martin, 58 Misc.2d 459, 296 N.Y.S.2d 453; see, generally, McKinney's Cons.Laws of N.Y., Book 1, Statutes, §§ 73, 74). Any possible omission in section 50-h should be remedied by the Legislature, not by the court.

Moreover, it is our view that the court properly denied plaintiffs' motion for summary judgment striking the affirmative defense of contributory negligence as against the plaintiffs-passengers in the present posture of the case. This negligence action arose out of a collision in which the four plaintiffs, a driver and three passengers, were in one of the vehicles. Generally, the courts have been manifestly reluctant to grant summary judgment in automobile negligence cases because of their concern to preserve a party's right to trial (see Connell v. Buitekant, 17 A.D.2d 944, 234 N.Y.S.2d 336; Small v. Tyres, 33 A.D.2d 1055, 308 N.Y.S.2d 730; see, also, the following Appellate Division, Second Department cases; Harvey v. Dileno, 35 A.D.2d 668, 314 N.Y.S.2d 867; Cicero v. Clark, 23 A.D.2d 583, 256 N.Y.S.2d 705; Thum v. Zraick, 12 A.D.2d 772, 209 N.Y.S.2d 686; Donahue v. Romahn, 10 A.D.2d 637, 196 N.Y.S.2d 887; Phelen v. Houghton, 9 A.D.2d 767, 192 N.Y.S.2d 231). There are times when summary judgment must be denied although there is no dispute as to how the accident occurred (Cooper v. Greyhound Bus Corporation, 13 A.D.2d 173, 174, 215 N.Y.S.2d 281). Further, the doctrine of comparative negligence applies to the case at bar. By virtue thereof, the defendants now have the burden of pleading and proving contributory negligence, characterized as "culpable conduct" (CPLR 1412). The courts have been reluctant to grant summary judgment where there may be defenses that depend upon knowledge in the possession of the movant which can be disclosed by cross-examination or an...

To continue reading

Request your trial
2 cases

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