Wood v. Picon

• Citation: 394 N.Y.S.2d 251,57 A.D.2d 863
• Parties: Ronald WOOD, Respondent, v. Elizabeth J. PICON, etc., Appellant.
• Decision Date: 09 May 1977
• Court: New York Supreme Court Appellate Division

Page 251

394 N.Y.S.2d 251

57 A.D.2d 863

Ronald WOOD, Respondent, v. Elizabeth J. PICON, etc., Appellant.

Supreme Court, Appellate Division, Second Department.

May 9, 1977.

Raymond J. MacDonnell, New York City (Philip Hoffer, New York City, of counsel; Rose L. Hoffer and Peter T. Affatato, New York City, on the brief), for appellant.

Garrity, Connolly, Lewis & Grimes, New York City (William R. Grimes, New York City, of counsel), for respondent.

Before COHALAN, J. P., and DAMIANI, HAWKINS, O'CONNOR and MOLLEN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Nassau County, dated December 17, 1976, which granted plaintiff-respondent's motion for summary judgment and directed an assessment of damages.

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

Roger J. Picon, while driving a vehicle owned by his mother, the defendant-appellant, was killed in a one-car accident. At the time plaintiff, a passenger in the vehicle, was sitting beside him on the front seat. Plaintiff suffered serious personal injuries when the automobile left the highway and struck objects at the side of the road.

After commencing an action to recover damages based upon the driver's negligence, plaintiff moved for summary judgment. His motion was denied, with leave to renew upon the completion of his examination before trial (EBT).

An EBT was duly held, after which the motion for summary judgment was renewed. Special Term granted the motion and set the matter down for an assessment of damages. It is from the order entered on the granting of this motion that defendant appeals.

Plaintiff is the sole surviving eyewitness to the accident. With all due respect to his presumed honesty, he could have said anything at the EBT that he chose to say. It is important to note that an EBT is, as its name suggests, an examination before trial (CPLR 3113), and not a cross-examination (see Dolan, Examination Before Trial and Other Disclosure Devices (rev. ed.), § 45).

Special Term had before it only the cold record. The Justice presiding did not see the plaintiff, who to him was merely a voice offstage. Unlike a trial in open court, where the testimony of a witness can be more properly evaluated, the court had only a transcript with which to weigh the testimony of the plaintiff, who has the sole and exclusive knowledge of the facts of the accident (see Rowden v....