Knight v. Maybee

• Decision Date: 14 October 1964
• Citation: 253 N.Y.S.2d 59,44 Misc.2d 152
• Parties: John J. KNIGHT, Plaintiff, v. David L. MAYBEE and Beatrice Maybee, Allan A. Hoopengarner, and Samuel Caico, Defendants.
• Court: New York Supreme Court

Page 59

253 N.Y.S.2d 59

44 Misc.2d 152

John J. KNIGHT, Plaintiff, v. David L. MAYBEE and Beatrice Maybee, Allan A. Hoopengarner, and Samuel Caico, Defendants.

Supreme Court, Erie County.

Oct. 14, 1964.

Herbert T. Cheiffetz, Buffalo, for plaintiff.

Vaughan, Brown, Kelly, Turner & Symons, Buffalo, for defendants Maybee.

CARMAN F. BALL, Justice.

The complaint herein is verified and alleges that the plaintiff sustained injuries as a result of a collision between a truck, in which he was a passenger, and an automobile owned by defendant, Beatrice Maybee, and being operated with her consent by the defendant, David L. Maybee, (Beatrice Maybee and David L. Maybee will be referred to hereafter as 'defendants').

The complaint contains the following paragraphs:

'Seventh: That on or about the 12th day of September, 1963, at or about 9:40 p.m. thereof, while the plaintiff, John J. Knight, was a passenger in the truck of the defendant, Samuel Caico, and which said truck was being operated and driven by Allan A. Hoopengarner, the agent, servant, and employee of the defendant, Samuel Caico, said truck in which plaintiff was riding violently collided and crashed with the automobile being operated by the defendant, David L. Maybee, on Jefferson Avenue at or near the intersection of Utica Street in the City of Buffalo, County of Erie and State of New York.'

'Eighth: That the vehicles of the defendants violently crashed, struck, and collided with each other and that said collision was caused by the recklessness, carelessness, and negligence of the defendants in the operation, control, and management of their respoective vehicles and without any fault, carelessness, or negligence on the part of the plaintiff contributing thereto.'

'Eleventh: That at all times herein mentioned, the defendant, David L. Maybee, was operating an automobile while under the influence of alcohol and in violation of Section 1192 of the Vehicle and Traffic Law of the State of New York.'

'Twelfth: That the defendant, David L. Maybee, did voluntarily drive an automobile while so drunk that his muscular and nervous reactions were retarded and the perfect co-ordination of eye, brain, and muscle so essential for driving a car, were impaired.'

'Thirteenth: That while incapable of operating a car after voluntarily getting intoxicated, the defendant, David L. Maybee wantonly, grossly, wilfully, and negligently did operate an automobile in a distinctly anti-social manner, all the circumstances considered, to plaintiff's grave detriment.'

'Fourteenth: That on the 8th day of November, 1963, defendant, David L. Maybee, after trial by jury, in the City Court of Buffalo, was found guilty and convicted of violation of Section 1192-2 of the Vehicle and Traffic Law of the State of New York.'

'Fifteenth: That the charge of drunken driving of which the defendant, David L. Maybee, was found guilty and convicted as set out in paragraph numbered 'Fourteenth' of this complaint arose from the circumstances as set out in paragraph numbered 'Seventh' of the complaint.'

'Seventeenth: That because of the defendant, David L. Maybee's, wilful and wanton negligence as aforesaid, and in consideration of the premises, the plaintiff is entitled to recover punitive damages against the defendant, David L. Maybee, in the amount of fifty thousand dollars ($50,000.00) over and above the sum of his compensatory damages.'

Heretofore, the defendants moved for an order striking paragraphs 'Fourteenth' and 'Fifteenth' from the complaint or, in the alternative, staying further proceedings in the action until a final determination of the pending appeal from the conviction alleged in paragraphs 'Fourteenth' and 'Fifteenth'. Apparently, the basis for the motion was that said allegations set forth evidence which would not be admissible in the action, and on the further ground that it was not proper to set forth such evidence in the complaint. This motion was heard by Hon. Frank J. Kronenberg, a Justice of this Court, who denied the motion in all respects.

After the denial of the said motion, the defendants served an unverified answer. The answer was deemed unacceptable by plaintiff's attorney on the ground that it was unverified and plaintiff's attorney returned it to defendants' counsel immediately.

The defendants thereupon served the unverified answer herein, in which they denied the allegations contained in paragraphs 'Eleventh,' 'Twelfth,' 'Thirteenth' and 'Seventeenth' of the complaint; denied knowledge or information sufficient to form a belief as to paragraph 'Seventh' of the complaint, but admitted

'that an automobile owned by the defendant, Beatrice Maybee, collided with a truck owned by Samuel Caico and driven by Allan A. Hoopengarner at about 9:40 P.M. on the 12th day of September, 1963.'

The answer also admitted the allegation contained in paragraph 'Eighth' of the complaint, but denied that part of paragraph 'Eighth' which alleges

'* * * that said collision was caused by the recklessness carelessness, and negligence of the defendants in the operation control, and management of their respective vehicles and without any fault, carelessness, or negligence on the part of the plaintiff contributing thereto.'

Simultaneously with the service of this answer, the defendants served upon the attorney for the plaintiff a notice of motion for an order to compel the plaintiff to accept the same, which motion was duly argued before me.

In support of this motion, defendants contend that if defendant, David L. Maybee, is successful in his pending appeal from the judgment convicting him of operating the motor vehicle while in an intoxicated condition, and in the event that a new trial is ordered, he would be privileged, on the ground of self-incrimination, from testifying on such a new trial as to any of the matters contained in the paragraphs of the complaint which have been set out verbatim above and he would also be privileged from testifying to such matter in the within civil action, under § 4501 of CPLR. (Counsel have advised the Court that the defendant did not plead guilty; that the defendant did not testify during the trial, and that the appeal from the judgment of conviction is still pending.)

In opposition, the plaintiff contends that the privilege against testifying on the ground of self-incrimination terminates with a judgment of conviction. That this is the rule, as it is usually...