Gerard v. Inglese

• Decision Date: 07 November 1960
• Citation: 11 A.D.2d 381,206 N.Y.S.2d 879
• Parties: Gregory John GERARD, an infant under the age of 14 years, by his Guardian ad Litem John Warren Gerard, Joan Gerard, and John Warren Gerard, individually, Respondents, v. Warren William INGLESE, Defendant, and Nancy Lee Inglese, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 879

206 N.Y.S.2d 879

11 A.D.2d 381

Gregory John GERARD, an infant under the age of 14 years, by

his Guardian ad Litem John Warren Gerard, Joan

Gerard, and John Warren Gerard, individually, Respondents, v. Warren William INGLESE, Defendant, and Nancy Lee Inglese, Appellant.

Supreme Court, Appellate Division, Second Department.

Nov. 7, 1960.

King, Edwards & O'Connor, William T. Gallagher, White Plains, of counsel, for appellant.

Lester Gutterman, New York City (B. Hoffman Miller, New York City, of counsel) for respondents.

Before NOLAN, P. J., and BELDOCK, CHRIST, PETTE and BRENNAN, JJ.

NOLAN, Presiding Justice.

The material facts are not in dispute.

Defendant Nancy Lee Inglese (the only defendant who was served and appeared in the action) was operating an automobile southerly on the Saw Mill River Parkway in Westchester County. The infant plaintiff and his mother, the plaintiff Joan Gerard, were riding as passengers in the automobile. While defendant was operating the automobile at a speed of 40 to 45 miles per hour, she attempted to light a cigarette, using the cigarette lighter of the car. In so doing she took her eyes off the road. The automobile struck the curb and for about 75 feet proceeded with two wheels on the grass, adjacent to the paved roadway, and finally stopped facing north.

The infant plaintiff and his mother were thrown out of the automobile and received injuries for which they seek recovery in this action. There is no claim that negligence on their part contributed to the accident.

Summary judgment has been granted against defendant pursuant to rule 113 of the Rules of Civil Practice. The motion for judgment was based, inter alia, on a transcript of defendant's examination before trial at which most of the foregoing facts were established by her testimony. Defendant has made no attempt to explain her failure to control the operation of her automobile, contending that the question whether the accident was caused by negligence on her part may only be determined on trial by a jury.

Defendant's position is tenable only if there is a real issue to be tried. If such is the case defendant undoubtedly has a constitutional right to a jury trial (N.Y.Const., art. I, § 2). However, the court is not obliged to wait until a jury has been empanelled to decide whether a real issue exists. It may decide that question on motion and, without violation of a litigant's constitutional rights, it may refuse to try an issue when it is fictitious and sham (Rules Civ.Prac., rule 113; Dwan v. Massarene, 199 App.Div. 872, 875, 192 N.Y.S. 577, 580; General Inv. Co. v. Interborough R. T. Co., 235 N.Y. 133, 139 N.E. 216.

Until the adoption in 1959 of our present rule 113, there was no authority in this State for the granting of summary judgment in favor of a plaintiff in a negligence action. That such a motion may now be granted is evident from the provision of the rule which permits a motion for judgment 'in any action', and the motion should be granted 'if, upon all the papers and proof submitted,' the action or claim is established 'sufficiently to warrant the court as a matter of law in directing judgment.' In other words, summary judgment in favor of a plaintiff may and should be granted if on the same proof, undisputed, the plaintiff would be entitled to a directed verdict on trial. If material facts are in dispute, or if countrary inferences may be drawn reasonably from undisputed facts, the issue is for the fact finders to decide on trial, and not for determination by a judge on motion.

The difficulty, however, in directing a plaintiff's verdict or in granting summary judgment to a plaintiff in a negligence case even when there is no dispute as to the physical facts of the accident and when there is no claim of contributory negligence, is that the unresolved issue still remains as to whether the defendant used such reasonable precautions to avoid the accident as would ordinarily be used by careful, prudent persons under like circumstances (cf. Barker v. Savage, 45 N.Y. 191; Schmidt v. Steinway & Hunter's Point Ry. Co., 132 N.Y. 566, 30 N.E. 389) and that question is essentially one of fact (Sadowski v. Long Is. R. R. Co., 292 N.Y. 448, 455, 55 N.E.2d 497, 500). Ordinarily such issue must be decided on trial (Evans v. Jones, 286...