Kiernan v. Hendrick

Decision Date02 January 1986
Citation116 A.D.2d 779,497 N.Y.S.2d 171
PartiesAlice M. KIERNAN, as Limited Administratrix of the Estate of Claude G. Packard, Deceased, Respondent-Appellant, v. Richard P. HENDRICK, et al., Appellants-Respondents, and Linsey Lipscomb et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Miller & LaFave (Cynthia S. LaFave, of counsel), Albany, for appellants-respondents.

Tabner, Scher & Laudato (Edward M. Scher, of counsel), Albany, for respondent-appellant.

Hesson, Ford, Sherwood & Whalen (Matthew J. Kelly, of counsel), Albany, for respondents.

Before KANE, J.P., and MAIN, CASEY, WEISS and LEVINE, JJ.

MAIN, Justice.

Cross appeals (1) from an order of the Supreme Court at Special Term (Cholakis, J.), entered November 20, 1984 in Albany County, which, inter alia, denied the motion of defendants Richard P. Hendrick and Karen A. Hendrick for summary judgment and granted the motion of defendants Linsey Lipscomb and Greyhound Lines, Inc. for summary judgment, and (2) from the judgment entered thereon.

At about 10:00 A.M. on September 27, 1982, defendant Linsey Lipscomb was operating a bus owned by defendant Greyhound Lines, Inc. (Greyhound) in a northerly direction on Interstate Route 787 in the City of Albany. At the same time, defendant Karen A. Hendrick was operating an automobile owned by her father in a northerly direction on the same highway. In the area where the accident occurred, Interstate Route 787 runs generally north and south with three lanes for travel in each direction. As the two vehicles proceeded northward, the Greyhound bus occupied the center lane and the Hendrick vehicle was in the left or westerly lane, and the front bumper of the Hendrick car was approximately in line with the rear bumper of the bus. Traffic was moderate, with vehicles traveling in each lane. At a point on the highway just north of the Rensselaer exit, Lipscomb observed Claude G. Packard some 50 to 100 yards to the north. He was standing off the pavement on the east side of the highway facing west with his arms extended. Lipscomb, who was traveling at approximately 45 to 50 miles per hour, did not brake or sound his horn, but continued on until he was a few yards from Packard at which time Packard began running in a westerly direction across the highway. Lipscomb swerved the bus toward his right, barely missing Packard. Meanwhile, Karen Hendrick, who up until this moment had been unable to see Packard because the bus had been blocking her view, was suddenly confronted by Packard entering her lane a few feet ahead of her and directly in her path. She immediately applied the brakes but was unable to avoid striking Packard, who died eight days later as a result of the injuries he received. This action was commenced against the operators and owners of the bus and automobile. On July 5, 1984, after answers and bills of particulars were served and examinations before trial were held, all defendants moved for summary judgment and dismissal of the complaint. Special Term granted summary judgment in favor of Lipscomb and Greyhound but denied this relief to the Hendricks, thus giving rise to these appeals by plaintiff and the Hendricks.

We first address the denial of the Hendricks' motion. Althou well aware that the grant of summary judgment continues to be a rare event in negligence cases and that "[t]he very question of whether the defendant's conduct amounts to 'negligence' is inherently a question for the fact-trier in all but the most egregious instances" (Siegel, Practice Commentaries, McKinney's Cons Laws of N.Y. Book 7B, CPLR C3212:8, p. 430), we find that the uncontested factual pattern demonstrated at bar presents just such an instance. There is not a particle of evidence to indicate that Karen Hendrick was operating her father's car in other than a prudent and reasonable manner under all of the circumstances prevailing. Vehicle...

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    • United States
    • New York Supreme Court
    • March 23, 2023
    ... ... [1982]; Andre , 35 N.Y.2d at 364; Nandy v Albany ... Med. Ctr. Hosp. , 155 A.D.2d 833, 833 [3d Dept 1989]; ... Kiernan v Hendrick , 116 A.D.2d 779, 781 [3d Dept ... 1986]). Lastly, "[a] motion for summary judgment ... 'should not be granted where the facts are in ... ...
  • Gomez v. 91-93 Franklin LLC
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    • New York Supreme Court
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    ... ... 35 N.Y.2d at 364; Nandy v Albany Med. Ctr. Hosp., ... 155 A.D.2d 833, 833 [3d Dept 1989]; Kiernan v ... Hendrick, 116 A.D.2d 779, 781 [3d Dept 1986]). Lastly, ... "[a] motion for summary judgment 'should not be ... granted where the facts are ... ...
  • Tenemaza v. PS 488 Grp.
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    • New York Supreme Court
    • March 28, 2023
    ...285, 291-292 [1982]; Andre, 35 N.Y.2d at 364; Nandy v Albany Med. Ctr. Hosp., 155 A.D.2d 833, 833 [3d Dept 1989]; Kiernan v Hendrick, 116 A.D.2d 779, 781 [3d Dept 1986]). Lastly, "[a] motion for summary judgment 'should not be granted where the facts are in dispute, where conflicting infere......
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