Kowgios v. Johnson, Drake & Piper , Inc.

• Decision Date: 26 April 1966
• Citation: 25 A.D.2d 739,269 N.Y.S.2d 945
• Parties: Gabriel KOWGIOS, Plaintiff-Respondent, v. JOHNSON, DRAKE & PIPER, INC., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 945

269 N.Y.S.2d 945

25 A.D.2d 739

Gabriel KOWGIOS, Plaintiff-Respondent, v. JOHNSON, DRAKE & PIPER, INC., Defendant-Appellant.

Supreme Court of New York, Appellate Division First Department.

April 26, 1966.

F. Weinberg, New York City, for plaintiff-respondent.

R. J. Burke, New York City, for defendant-appellant.

Order, entered on October 20, 1965, granting summary judgment unanimously affirmed with $50 costs and disbursements to respondent. Order, entered on December 3, 1965, denying motion for a rehearing reversed on the facts and the law and as a matter of discretion and summary judgment vacated without costs and without disbursements. At the time of the argument of the motion for summary judgment defendant's employee charged with the actual negligence had left its employ and his whereabouts were unknown. On the papers then before the court we would not be disposed to disagree with Special Term's conclusion. Some weeks later the former employee was located in Albany. We believe that sufficient diligence was shown so that Special Term in the exercise of proper discretion should have allowed a rehearing. This affidavit raises two questions to be resolved by the trier of the facts: whether, under the circumstances, the contact between the blade of the bulldozer and the ladder on which plaintiff was standing was the result of negligent operation; and whether, under the same circumstances, plaintiff's presence at the place and time constituted contributory negligence.

All concur except RABIN and EAGER, JJ., who dissent as to Appeal No. 10096 in the following memorandum by EAGER, J:

The motion by defendant for a rehearing was made nearly two months after the rendition of the order granting plaintiff's motion for summary judgment and pending an appeal from such order. Special Term, upon denying the motion, properly concluded that '(n)o adequate explanation or reason has been advanced for the failure to include the affidavit of the operator of the bulldozer in the original papers submitted in opposition to the motion.' Since this conclusion is well supported, there is no justification for interference with the exercise of discretion at Special Term to deny the motion. In any event, the affidavit of the operator of the bulldozer fails to disclose the existence of a triable issue with respect to his alleged negligence. He states that the plaintiff fell from the ladder when he (the operator) 'was backing away from a pile of dirt with the blade from my machine level with the grade. * * * I was not really sure that...