Guaspari v. Gorsky
| Decision Date | 05 January 1972 |
| Citation | 328 N.Y.S.2d 679,278 N.E.2d 913,29 N.Y.2d 891 |
| Parties | , 278 N.E.2d 913 Richard GUASPARI, as Administrator, etc., Respondent, v. Chester M. GORSKY, etc., Appellant. Karen GUASPARI, an Infant, by Richard Guaspari, Her Father and Natural Guardian, Respondent, v. Chester M. GORSKY, Also Known as Chester M. Gorski, Appellant. Richard GUASPARI, Respondent, v. Chester M. GORSKY, Also Known as Chester M. Gorski, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Sugarman, Wallace, Manheim & Schoenwald, Syracuse, for defendant-appellant.
Griffith & Pileckas, Rome, for plaintiffs-respondents.
Action was brought for damages for personal injuries and wrongful death arising out of automobile accident against the owner of stolen automobile which was negligently operated by a thief. The Oneida Trial Term, Richard D. Simons, J., entered judgment against the automobile owner who appealed.
The Appellate Division affirmed on ground that the jury could conclude that the owner's failure to remove key from ignition switch was one of the links of causation which resulted in damage to the plaintiffs. The owner appealed.
In the Court of Appeals the owner claimed that it was fundamental error to submit case to jury on charge that Vehicle and Traffic Law, Consol.Laws, c. 71 § 1210(a) relating to duty to remove key from unattended vehicle was applicable, that absent a statutory duty the owner was not liable under the common law for thief's negligence and the verdict was against the weight of evidence as a matter of law. The plaintiffs urged that the issue of whether statute applied was not raised by owner either at trial or in Appellate Division and should not be raised for the first time in the Court of Appeals and, in any event, the statute did apply.
Appeal dismissed, without costs, on the ground that no appeal lies as of right under CPLR 561(a)(i), since neither of the dissents in the Appellate Division is on a stated question of law which would be reviewable in this Court. Both dissents rest only on questions of fact or discretion not reviewable by this Court, namely, whether the jury's verdict in plaintiff's favor was against the weight of the evidence and whether the Appellate Division should have exercised its discretionary power to order a new trial in the interests of justice. The claimed error in the trial court's charge, to which reference is made in one of the dissents, does not present any reviewable question of law since no objection was taken thereto at the...
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