Schneiderman v. Metzger

• Decision Date: 08 July 1968
• Docket Number: Nos. 1,2,s. 1
• Citation: Schneiderman v. Metzger, 292 N.Y.S.2d 570, 30 A.D.2d 829 (N.Y. App. Div. 1968)
• Parties: Sheila SCHNEIDERMAN et al., Plaintiffs, v. Louis M. METZGER et al., Defendants. Patricia ALBRO et al., Respondents-Appellants, v. Ivan SODERO et al., Respondents, and Gerald Schneiderman et al., Appellants. Action
• Court: New York Supreme Court — Appellate Division

Page 570

292 N.Y.S.2d 570

30 A.D.2d 829

Sheila SCHNEIDERMAN et al., Plaintiffs, v. Louis M. METZGER et al., Defendants.

Patricia ALBRO et al., Respondents-Appellants, v. Ivan SODERO et al., Respondents, and Gerald Schneiderman et

al., Appellants.

Action Nos. 1, 2.

Supreme Court, Appellate Division, Second Department.

July 8, 1968.

Weiss & Neuren, New York City, for plaintiffs-respondents-appellants in Action No. 2, by Samuel W. Gilman, New York City.

MacIntyre, Burke, Smith & Curry, New York City, for defendants-respondents, Ivan Sodero and Louis Metzger, by Gregory H. Hammill, New York City.

Schaffner & Lawless, Brooklyn, for defendants-appellants; William F. Larkin, New York City, of counsel.

Before CHRIST, Acting P.J., and BRENNAN, SAMUEL RABIN, HOPKINS and MUNDER, JJ.

MEMORANDUM BY THE COURT.

In consolidated negligence actions to recover damages for personal injuries, loss of services, etc., order of the Supreme Court, Kings County dated November 14, 1967, modified, on the law, by amending the decretal paragraph so as to grant the cross motion of defendants Schneiderman for summary judgment against plaintiffs Albro in Action No. 2 and to sever the action accordingly. As so modified, order affirmed insofar as appealed from, with a separate bill of $10 costs and disbursements to defendants filing separate briefs against plaintiffs Albro.

As plaintiffs Albro concede on this appeal, no evidentiary fact tending to raise a triable issue concerning the claimed negligence of defendants Schneiderman, in whose Volkswagen plaintiff Patricia Albro was a passenger, was alleged by any party in opposition to the cross motion of these defendants. With respect to the denial of the motion of plaintiffs Albro for summary judgment against defendants Metzger and Sodero in Action No. 2, we think Special Term's order was proper, for among the papers before the court there was neither proof concerning whether and to what extent the road was lighted nor whether the tail-lights of the Volkswagen driven by defendant Sheila Schneiderman, stopped at a stop sign at midnight, were in operation. It is true that, at a hearing before the Department of Motor Vehicles, defendant Metzger testified that he did not see the Volkswagen in time to stop because he was looking at a traffic light located at the intersection following that at which he collided into the rear of the Volkswagen. Persuasive of lack of care though that admission may be, it does not constitute proof that such lack of care, as a matter of law, was the proximate cause of the collision unless it is equally proved that, had Metzger looked, he would have seen the Volkswagen at a point at which he could have avoided the collision.

BRENNAN, HOPKINS and MUNDER, JJ., concur.

CHRIST, Acting P.J., and SAMUEL RABIN, J., concur in the modification granting summary...