Segal v. Segal

• Decision Date: 27 December 1979
• Citation: 73 A.D.2d 586,423 N.Y.S.2d 168
• Parties: Cynthia L. SEGAL et al., Plaintiffs-Respondents, v. Abram SEGAL, Defendant-Appellant, and Rosalind B. Cooper, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 168

423 N.Y.S.2d 168

73 A.D.2d 586

Cynthia L. SEGAL et al., Plaintiffs-Respondents, v.Abram SEGAL, Defendant-Appellant and Rosalind B. Cooper, Defendant.

Supreme Court, Appellate Division, First Department.

Dec. 27, 1979.

H. F. Cerny, New York City, for plaintiffs-respondents.

R. P. McTiernan, New York City, for defendant-appellant.

Before KUPFERMAN, J. P., and BIRNS, SILVERMAN, ROSS and LYNCH, JJ.

MEMORANDUM DECISION.

Interlocutory judgment, Supreme Court, New York County, entered May 24, 1979, after a non-jury trial, adjudicating the issue of liability in favor of plaintiffs and determining that plaintiffs shall recover from defendantAbram Segal upon the ultimate determination of damages one-third of such damages, so far as appealed from by said defendant, is affirmed, with costs to plaintiffs.

On this record, negligence, proximate cause, and apportionment of liability as against said defendant all presented questions of fact (Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132, 135, 269 N.Y.S.2d 115, 116, 216 N.E.2d 324, 325;Dole v. Dow Chemical, 30 N.Y.2d 143, 149, 331 N.Y.S.2d 382, 387, 282 N.E.2d 288, 292).We do not think we should interfere with the determination of these questions of fact by the trial judge who sat as trier of the facts.

Plaintiffs raise serious questions as to the appropriate apportionment as against defendants who are not parties to the action, one of whom had not settled with defendant, and request that we delete those portions of the judgment apportioning damages in the amount of one-third.However, as plaintiffs did not appeal from the interlocutory judgment, we do not now pass on plaintiffs' request.

All concur, except BIRNS and LYNCH, JJ., who dissent in a memorandum by LYNCH, J., as follows:

We dissent and would reverse and dismiss the complaint.

In this negligence action the issue of liability only was tried by the court without a jury.An automobile, owned by defendant Segal, lent to his daughter, Mrs. Fritz, who was a passenger, and driven by the named, but unserved, defendant, Miss Cooper, was in an accident, injuring the plaintiff, who is also a daughter of the defendant owner.The car suddenly went out of control while going east on the Massachusetts Turnpike, coming to rest on the inside eastbound lane and moments later it was struck by another car.The trial court correctly concluded that these facts would call upon the defendant for an explanation; unexplained, they would constitute a sufficient showing of negligence upon which the trier of the facts might, but would not be required to, find him negligent (Pfaffenbach v. White Plains Exp. Corp., 17 N.Y.2d 132, 269 N.Y.S.2d 115, 216 N.E.2d 324;Coury v. Safe Auto Sales, 32 N.Y.2d 162, 344 N.Y.S.2d 347, 297 N.E.2d 88).Explained, the explanation can be evaluated by the trier of the fact and reasonably accepted to exonerate the defendant(Fagle v. Bell, 65 A.D.2d 887, 410 N.Y.S.2d 422).

The defendant provided an explanation through the evidence of the only two eyewitnesses.(The plaintiff remembers nothing of the accident.)The driver Cooper testified that the three women had left Boston two days before for a weekend in New York.Mrs. Fritz had driven part of the way and she had driven the remainder.On the return trip Mrs. Fritz drove to a restaurant on the Massachusetts Turnpike where Miss Cooper took over.This was about 8:30 at night on a March 24th and it was dark.About a minute after leaving the restaurant it started to snow in light flurries that they drove into and out of, but the visibility was clear.Miss Cooper testified that she was driving about 50 miles an hour the posted speed limit was sixty-five.She stated that, about five minutes away from the restaurant, "we were driving along having a discussion and all of a sudden I just skidded and lost control of the car and I skidded or slid across the lanes and hit the barrier, the right hand barrier, bounced off, and I believe it skidded back . . . " with the car coming to rest partly or all on the inner eastbound lane.The car's engine died and, within a minute while Miss Cooper was trying to start it, they were struck by another car.

A policeman who came to the scene of the accident testified that Miss Cooper, interviewed at the scene, said that "the road was dry and all of a sudden it was glare ice".

Mrs. Fritz testified that she had ridden before with Miss Cooper as...