Mark v. State
| Decision Date | 26 September 1959 |
| Docket Number | No. 32836,32836 |
| Citation | 21 Misc.2d 63,197 N.Y.S.2d 92 |
| Parties | Carren MARK, an infant under fourteen years of age, by Harold V. Mark, her Guardian ad Litem, and Harold V. Mark, Claimants, v. STATE of New York. Claim |
| Court | New York Court of Claims |
Carl E. Alper, New York City, for claimant.
Louis J. Lefkowitz, Atty. Gen., John F. Dyer, Asst. Atty. Gen., of counsel, for the State.
Following the trial of this claim, the stenographer's minutes were transcribed and the case was submitted upon briefs of counsel. The proofs and the arguments were duly considered by the Court and thereafter a formal decision was rendered dismissing both claims. The dismissal was based upon a finding of fact that the claimant, Carren Mark, was not free from contributory negligence. She had sustained personal injuries in a fall from a bicycle on a street in a housing project maintained at the time by the State of New York although then the subject of demolition. The Court found as facts that at the time of the accident Carren Mark was a bright, intelligent child in the 6th grade at school and was 10 years and 10 months of age; that she had been riding a bicycle approximately three years prior to date of the accident; that she was aware of the broken sidewalks as well as the stones and debris littering the street and the vicinity thereof.
As conclusions of law the Court found that the infant claimant, Carren Mark, was obliged to use reasonable care in observing whatever conditions existed in the street where she was riding her bicycle. She was not permitted to disregard such facts and conditions as she saw, as were apparent and visible to any girl of her age using reasonable and ordinary care to observe what the actual conditions were at the time and place of the alleged accident. Roehl v. Whelpley, 1943, 290 N.Y. 852, 50 N.E.2d 241.
A further conclusion of law was that in order to recover herein, the claimants had the burden of establishing that no failure on the part of the infant Carren Mark to exercise the care which might reasonably be expected of a child of equal age and capacity contributed to her injuries. Camardo v. New York State Railways, 1928, 247 N.Y. 111, 159 N.E. 879; Logan v. Jackson, 1956, 1 A.D.2d 146, 148 N.Y.S.2d 466.
The claimants now move for an order to set aside the aforesaid decision on the ground that the same is contrary to the facts and the law, and for such other and further relief as to the Court may seem just and proper. The motion must be denied as a matter of practice for reasons which we shall hereafter set forth. But because counsel for the claimants utilizes his moving affidavit to renew his argument on the merits of the case, we deem it advisable to indulge in a few comments.
The basis of this application for relief is that there is a common-law presumption that a child under 12 years of age is non sui juris and that, no evidence having been introduced as to the child's intelligence at the time of the accident, the presumption exists until refuted by legal evidence and that, because the defense presented no such evidence, the Court erred in holding that Carren Mark was guilty of contributory negligence. Counsel for the claimants is not consistent. Upon the trial, in his brief and even now in his moving affidavit which is, for the most part, a legal argument, he emphasizes the alertness of the child to the situation in which she found herself and her mindfulness of the condition of the street and the pains she took to avoid injury to herself as indicated by her testimony of which we quote the following:----
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Arlen of Nanuet, Inc. v. State
... ... 'A motion under this rule shall be made before the judge who presided at the trial within fifteen days after decision, verdict or discharge of the jury * * *.' ... This rule is binding upon the Court of Claims. Mark v. State of New York, 21 Misc.2d 63, 197 N.Y.S.2d 92 (Ct. of Claims 1959); Trimpoli v. State of New York, 21 Misc.2d 67, 197 N.Y.S.2d 97 (Ct. of Claims, 1959). The determinative date has been deemed to be the date on which the decision is filed. Bernstein v. Swidunovich, 44 Misc.2d 728, 254 ... ...
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