Small v. Tyres

CourtNew York Supreme Court Appellate Division
Citation308 N.Y.S.2d 730,33 A.D.2d 1055
Decision Date25 February 1970
PartiesLouis A. SMALL, Respondent, v. Katie TYRES, etc., et al., Appellants.

Page 730

308 N.Y.S.2d 730
33 A.D.2d 1055
Louis A. SMALL, Respondent,
v.
Katie TYRES, etc., et al., Appellants.
Supreme Court, Appellate Division, Second Department.
Feb. 25, 1970.

Page 731

David C. Gilberg, Mount Vernon, for plaintiff-respondent; Michael H. Gilberg, Mount Vernon, on the brief.

Hanlon & Dawe, New York City, for defendants-appellants; Logue & O'Connor, Russell B. Greaves, New York City, of counsel.

Before HOPKINS, Acting P.J., and MUNDER, MARTUSCELLO, BRENNAN and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal and property injuries, defendants appeal from an order of Supreme Court, Westchester County, dated May 26, 1969, which granted plaintiff's motion for summary judgment.

Order reversed, on the law, without costs, and motion denied.

Plaintiff stopped his automobile for a red light on 60th Street at the corner of York Avenue, in the Borough of Manhattan. Defendant Nicholson, operator of an automobile owned by his employer, defendant Tyres, had parked that vehicle on the downhill portion of 60th Street, facing York Avenue. The car had been left unattended and suddenly began to roll and eventually hit the back of plaintiff's car.

The moving papers stated tht defendants did not properly park their car on a hill; that the brakes were not in working order; that this was in violation of subdivision (a) of section 1210 of the Vehicle and Traffic Law; and that the only permissible inference to be drawn is that defendants' failure to comply with the statute was the cause of the accident. Plaintiff's moving affidavit also incorporated portions of his examination of defendants before trial, in which defendants testified that their car had been purchased approximately two months before the accident and that the brakes had been inspected. The opposing papers stated that the parking brake was on and that the wheels were turned in towards the curb.

In our opinion, it was an improvident exercise of discretion by Special Term to grant plaintiff's motion for summary judgment. The issue of negligence and other relevant issues should be tried and determined by a jury (Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132, 269 N.Y.S.2d 115, 216 N.E.2d 324). A violation of the above cited provision of the Vehicle and Traffic Law is only one factor to be considered in determining negligence and is to be evaluated in light of the general doctrine of proximate cause (Waldorf v. Sorbo, 10...

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5 practice notes
  • Andre v. Pomeroy
    • United States
    • New York Court of Appeals
    • November 21, 1974
    ...548; Kind v. Barone, 12 A.D.2d 625, 208 N.Y.S.2d 147; Block v. Acerra, 12 A.D.2d 525, 207 N.Y.S.2d 845; see, a fortiori, Small v. Tyres, 33 A.D.2d 1055, 308 [320 N.E.2d 856] N.Y.S.2d 730 (defendant's unattended automobile rolled downhill); Schneiderman v. Metzger, 30 A.D.2d 829, 292 N.Y.S.2......
  • O'Donnell v. Maves, No. 10336
    • United States
    • Supreme Court of Arizona
    • January 26, 1972
    ...Ins. Co. of Newark, New Jersey, 254 La. 330, 223 So.2d 822 (1969); McGlone v. Corbi, 59 N.J. 86, 279 A.2d 812 (1971); Small v. Tyres, 33 A.D.2d 1055, 308 N.Y.S.2d 730 (1970). Contra Spalding v. Waxler, 2 Ohio St.2d 1, 205 N.E.2d 890 (1965). Only where, admitting the violation, the defendant......
  • General Acc. Group v. Noonan
    • United States
    • United States State Supreme Court (New York)
    • May 25, 1971
    ...the 'key in the ignition' statute is liable for negligent harm done by a thief in the operation of the stolen car. Cf. Small v. Tyres, 33 A.D.2d 1055, 308 N.Y.S.2d Page 485 On the other hand, if it were assumed that a breach of the statute created an implied consent to operate the car, the ......
  • Fitzgerald v. Sanitation Dist. No. 6, Town of Hempstead
    • United States
    • New York Supreme Court — Appellate Term
    • November 17, 1977
    ...because of their concern to preserve a party's right to trial (see Connell v. Buitekant, 17 A.D.2d 944, 234 N.Y.S.2d 336; Small v. Tyres, 33 A.D.2d 1055, 308 N.Y.S.2d 730; see, also, the following Appellate Division, Second Department cases; Harvey v. Dileno, 35 A.D.2d 668, 314 N.Y.S.2d 867......
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5 cases
  • Andre v. Pomeroy
    • United States
    • New York Court of Appeals
    • November 21, 1974
    ...548; Kind v. Barone, 12 A.D.2d 625, 208 N.Y.S.2d 147; Block v. Acerra, 12 A.D.2d 525, 207 N.Y.S.2d 845; see, a fortiori, Small v. Tyres, 33 A.D.2d 1055, 308 [320 N.E.2d 856] N.Y.S.2d 730 (defendant's unattended automobile rolled downhill); Schneiderman v. Metzger, 30 A.D.2d 829, 292 N.Y.S.2......
  • O'Donnell v. Maves, No. 10336
    • United States
    • Supreme Court of Arizona
    • January 26, 1972
    ...Ins. Co. of Newark, New Jersey, 254 La. 330, 223 So.2d 822 (1969); McGlone v. Corbi, 59 N.J. 86, 279 A.2d 812 (1971); Small v. Tyres, 33 A.D.2d 1055, 308 N.Y.S.2d 730 (1970). Contra Spalding v. Waxler, 2 Ohio St.2d 1, 205 N.E.2d 890 (1965). Only where, admitting the violation, the defendant......
  • General Acc. Group v. Noonan
    • United States
    • United States State Supreme Court (New York)
    • May 25, 1971
    ...the 'key in the ignition' statute is liable for negligent harm done by a thief in the operation of the stolen car. Cf. Small v. Tyres, 33 A.D.2d 1055, 308 N.Y.S.2d Page 485 On the other hand, if it were assumed that a breach of the statute created an implied consent to operate the car, the ......
  • Fitzgerald v. Sanitation Dist. No. 6, Town of Hempstead
    • United States
    • New York Supreme Court — Appellate Term
    • November 17, 1977
    ...because of their concern to preserve a party's right to trial (see Connell v. Buitekant, 17 A.D.2d 944, 234 N.Y.S.2d 336; Small v. Tyres, 33 A.D.2d 1055, 308 N.Y.S.2d 730; see, also, the following Appellate Division, Second Department cases; Harvey v. Dileno, 35 A.D.2d 668, 314 N.Y.S.2d 867......
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