McDaniel v. Clarkstown Cent. School Dist. No. 1
| Decision Date | 06 May 1985 |
| Citation | 488 N.Y.S.2d 783,111 A.D.2d 151 |
| Parties | , 24 Ed. Law Rep. 1213 Robert O. McDANIEL, etc., Plaintiff-Respondent, v. CLARKSTOWN CENTRAL SCHOOL DISTRICT NO. 1, et al., Appellants, et al., Defendant, World Wide Volkswagen, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
MacCartney, MacCartney & MacCartney, Nyack (Harold Y. MacCartney, Jr., Nyack, on the brief), for appellant Clarkstown Central School Dist. No. 1.
Herzfeld & Rubin, P.C., New York City (Herbert Rubin, Edward L. Birnbaum and David B. Hamm, New York City, of counsel), for appellants Volkswagen of America, Inc. and Volkswagenwerk, A.G.
Lipsig, Sullivan & Liapakis, P.C., New York City (Elise Hagouel Langsam, New York City, of counsel), for plaintiff-respondent.
Before TITONE, J.P., and MANGANO, WEINSTEIN and KUNZEMAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., and wrongful death, defendants Volkswagen of America, Inc., Volkswagenwerk, A.G. and Clarkstown Central School District No. 1 appeal from an order of the Supreme Court, Rockland County, dated March 20, 1984, which denied their motions for summary judgment dismissing the second amended complaint and any cross claims as against them.
Order modified, on the law, by granting appellants' motions to the extent that the first three causes of action of plaintiff's second amended complaint are dismissed as against them, and those causes of action are dismissed against all defendants. As so modified, order affirmed, without costs or disbursements.
Plaintiff's decedent allegedly died on April 10, 1979 as the result of injuries she sustained in an automobile accident which occurred on June 13, 1972. Plaintiff asserts four causes of action. The first and second causes of action sound in negligence and strict products liability, respectively. The third cause of action is to recover damages for loss of consortium and the fourth is to recover damages for wrongful death. Defendants Volkswagen of America, Inc. and Volkswagenwerk, A.G. moved and defendant Clarkstown Central School District No. 1 cross-moved for summary judgment dismissing the second amended complaint and any cross claims as against them. Special Term denied those motions in their entirety. We now modify the order of Special Term, so as to grant these motions as to the first three causes of action and, pursuant to CPLR 3212(b), we grant summary judgment on those causes of action in favor of the nonappealing defendants as well (see Maddox v. City of New York, 108 A.D.2d 42, 487 N.Y.S.2d 354 [2d Dept., April 1, 1985] ).
New York's system of comparative negligence became effective on September 1, 1975 (L.1975, ch. 69 § 4) and was given prospective effect only (CPLR 1413; Flynn v. City of New York, 103 A.D.2d 98, 478 N.Y.S.2d 666). The claims upon which plaintiff bases his first three causes of action accrued prior to that date and are, accordingly, governed by the doctrine of contributory negligence (Flynn v. City of New York, supra ). The record reveals that plaintiff's decedent was contributorily negligent as a matter of law, and we therefore find that defendants are entitled to summary judgment as to those causes of action.
The evidence adduced consists primarily of the testimony of Richard W. Barrett, the driver of the school bus with which plaintiff's decedent's vehicle came in contact. Mr. Barrett's uncontradicted testimony reveals that he was proceeding to turn his bus from Laurel Road onto the southbound lane of Brewery Road when he observed the decedent's vehicle, which was proceeding northbound on Brewery Road, cross over into the southbound lane of traffic. At that point, he stopped his bus and the decedent's vehicle returned to the northbound lane. However, the decedent's vehicle then re-entered the southbound lane and collided with the bus head-on. Barrett's assertion that, at the time of impact, the decedent's vehicle was on the wrong side of the road is corroborated by the testimony of a police officer who observed the position of the vehicle after the accident and who noted that the decedent's vehicle, although facing north, was in the southbound lane.
This testimony establishes that plaintiff's decedent was in violation of certain provisions of the Vehicle and Traffic Law which forbid a motorist from crossing the center of a road into a lane used by oncoming traffic (see Vehicle and Traffic Law § 1120). Such a violation, if unexcused (and here there is no excuse suggested), constituted negligence (Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132, 269 N.Y.S.2d 115, 216 N.E.2d 324). This negligence clearly contributed to the accident and, thus, the conclusion that the plaintiff's decedent was contributorily negligent is inescapable.
Plaintiff argues that, regardless of his decedent's contributory negligence, recovery is possible under...
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...is no indication in Penner that the cause of action was one to recover damages for wrongful death. In McDaniel v. Clarkstown Cent. School Dist. No. 1, 111 A.D.2d 151, 153, 488 N.Y.S.2d 783, on rearg. 110 A.D.2d 349, 494 N.Y.S.2d 885, we reaffirmed the general principle that a cause of actio......
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McDaniel v. Clarkstown Cent. School Dist. No. 1
...The facts of this case are set forth in more detail in the decision of this court dated May 6, 1985 (McDaniel v. Clarkstown Central School Dist. No. 1, 111 A.D.2d 151, 488 N.Y.S.2d 783). For the purposes of this motion only, it is not disputed that the court correctly found that plaintiff's......
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McDaniel v. Clarkstown Central School District No. 1, 1
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