Whitely v. Lobue

CourtNew York Court of Appeals
Writing for the CourtThe Supreme Court, Special Term, Nassau County, Joseph Liff; All concur except KEATING
Citation301 N.Y.S.2d 635,24 N.Y.2d 896
Decision Date23 April 1969
Parties, 249 N.E.2d 476 Roberta WHITELY et al., Appellants, v. Andrew LOBUE et al., Respondents.

Page 635

301 N.Y.S.2d 635
24 N.Y.2d 896, 249 N.E.2d 476
Roberta WHITELY et al., Appellants,
v.
Andrew LOBUE et al., Respondents.
Court of Appeals of New York.
April 23, 1969.

Appeal from Supreme Court, Appellate Division, Second Department, 30 A.D.2d 552, 291 N.Y.S.2d 791.

[249 N.E.2d 477] [24 N.Y.2d 898]

Page 636

Austin & DuPont, Mineola (James F. Niehoff, Mineola, of counsel), for plaintiffs-appellants.

Leahey & Johnson, New York City (Asher Marcus, New York City, of counsel), for defendants-respondents.

[249 N.E.2d 476] [24 N.Y.2d 896]

Page 635

Action was brought to recover damages for personal injuries to plaintiff driver and his two infant children who were passengers in automobile and for loss of services and medical expenses incurred by the plaintiff and his wife when eastbound automobile being operated next to grass divider by plaintiff driver was struck by defendant's westbound automobile which left westbound lane, crossed divider strip and crashed into plaintiff's automobile. The defendant driver had stated that she must have looked away for a moment and realized that the preceding westbound automobile was too close so she put on her brakes real hard and struck her head.

The Supreme Court, Special Term, Nassau County, Joseph Liff, J., 59 Misc.2d 755, 300 N.Y.S.2d 907, entered order which, on reargument, adhered to original decision granting plaintiffs' motion for summary judgment.

The Appellate Division entered order on May 13, 1968, which, insofar as appealed from, reversed order of the Special Term granting plaintiffs' motion for summary judgment, and the question certified by the Appellate Division: 'Was the order of this court, dated May 13, 1968, properly made?'

The plaintiffs appealed to the Court of Appeals contending that there was no issue of material fact presented in case to justify a jury trial on the subject of liability as the only reasonable inference to be drawn was that of negligence on part of defendant[249 N.E.2d 477] driver proximately causing the accident.

[24 N.Y.2d 898] Order reversed, without costs, and the order of Special Term reinstated on the opinion at Special Term. Question certified answered in the negative.

All concur except KEATING, J., taking no part.

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8 practice notes
  • E.J. Brooks Co. v. Cambridge Sec. Seals, No. 26
    • United States
    • New York Court of Appeals
    • 3 Mayo 2018
    ...Dept. 1968] [Eager, J., dissenting], mod on dissenting op below 23 N.Y.2d 914, 298 N.Y.S.2d 314, 246 N.E.2d 166 [1969], rearg. denied 24 N.Y.2d 896, 301 N.Y.S.2d 634, 249 N.E.2d 476 [1969] ; Santa's Workshop, Inc. v. Sterling, 2 A.D.2d 262, 267, 153 N.Y.S.2d 839 [3d Dept. 1956], affd 3 N.Y.......
  • Andre v. Pomeroy
    • United States
    • New York Court of Appeals
    • 21 Noviembre 1974
    ...par. 3212.03). CPLR 3212 now permits summary judgment 'in any action' 1 and that includes personal injury suits (Whitely v. Lobue, 24 N.Y.2d 896, 301 N.Y.S.2d 635, 249 N.E.2d The statute directs that 'The motion shall be granted if, upon all the papers and proof submitted, the cause of acti......
  • Forbes v. Plume
    • United States
    • New York Supreme Court — Appellate Division
    • 17 Marzo 1994
    ...vehicle accident report filed by defendant to entitle her to judgment as a matter of law (see, CPLR 3212[b]; see also, Whitely v. Lobue, 24 N.Y.2d 896, 301 N.Y.S.2d 635, 249 N.E.2d 476; Gardner v. Ethier, 173 A.D.2d 1002, 569 N.Y.S.2d 835). The burden shifted to defendant to demonstrate by ......
  • Andre v. Pomeroy
    • United States
    • New York Supreme Court Appellate Division
    • 22 Abril 1974
    ...40 A.D.2d 840, 337 N.Y.S.2d 337; Whitely v. Lobue, 59 Misc.2d 755, 300 N.Y.S.2d 907, revd. 30 A.D.2d 552, 291 N.Y.S.2d 791, revd. 24 N.Y.2d 896, 301 N.Y.S.2d 635, 249 N.E.2d 476; Gerard v. Inglese, 11 A.D.2d 381, 206 N.Y.S.2d Since I can discern not even the semblance of a triable issue, I ......
  • Request a trial to view additional results
8 cases
  • E.J. Brooks Co. v. Cambridge Sec. Seals, No. 26
    • United States
    • New York Court of Appeals
    • 3 Mayo 2018
    ...Dept. 1968] [Eager, J., dissenting], mod on dissenting op below 23 N.Y.2d 914, 298 N.Y.S.2d 314, 246 N.E.2d 166 [1969], rearg. denied 24 N.Y.2d 896, 301 N.Y.S.2d 634, 249 N.E.2d 476 [1969] ; Santa's Workshop, Inc. v. Sterling, 2 A.D.2d 262, 267, 153 N.Y.S.2d 839 [3d Dept. 1956], affd 3 N.Y.......
  • Andre v. Pomeroy
    • United States
    • New York Court of Appeals
    • 21 Noviembre 1974
    ...par. 3212.03). CPLR 3212 now permits summary judgment 'in any action' 1 and that includes personal injury suits (Whitely v. Lobue, 24 N.Y.2d 896, 301 N.Y.S.2d 635, 249 N.E.2d The statute directs that 'The motion shall be granted if, upon all the papers and proof submitted, the cause of acti......
  • Forbes v. Plume
    • United States
    • New York Supreme Court — Appellate Division
    • 17 Marzo 1994
    ...vehicle accident report filed by defendant to entitle her to judgment as a matter of law (see, CPLR 3212[b]; see also, Whitely v. Lobue, 24 N.Y.2d 896, 301 N.Y.S.2d 635, 249 N.E.2d 476; Gardner v. Ethier, 173 A.D.2d 1002, 569 N.Y.S.2d 835). The burden shifted to defendant to demonstrate by ......
  • Andre v. Pomeroy
    • United States
    • New York Supreme Court Appellate Division
    • 22 Abril 1974
    ...40 A.D.2d 840, 337 N.Y.S.2d 337; Whitely v. Lobue, 59 Misc.2d 755, 300 N.Y.S.2d 907, revd. 30 A.D.2d 552, 291 N.Y.S.2d 791, revd. 24 N.Y.2d 896, 301 N.Y.S.2d 635, 249 N.E.2d 476; Gerard v. Inglese, 11 A.D.2d 381, 206 N.Y.S.2d Since I can discern not even the semblance of a triable issue, I ......
  • Request a trial to view additional results

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