Hoey v. City of New York

Appellate Division of the Supreme Court of New York

Hoey v. City of New York

187 A.D.2d 386, 590 N.Y.S.2d 434, 1992 N.Y. App. Div. LEXIS 13111

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 19, 1992

StatusPublished

Cited by1 cases

This text of 187 A.D.2d 386 (Hoey v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hoey v. City of New York, 187 A.D.2d 386, 590 N.Y.S.2d 434, 1992 N.Y. App. Div. LEXIS 13111 (N.Y. Ct. App. 1992).

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Opinion

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered January 3, 1991, which, inter alia, denied the cross-motion by defendants Donald Holzer, Kin Leasing Corp. and Kinney Motors, Inc. ("the Holzer defendants”) for summary judgment pursuant to CPLR 3212 dismissing the complaint, unanimously affirmed, without costs.

The infant plaintiff and her infant deceased sister were struck by a vehicle while attempting to cross the New England Thruway. The Court of Appeals has consistently stated that "[njegligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination” (Ugarriza v Schmieder, 46 NY2d 471, 474; see also, Andre v Pomeroy, 35 NY2d 361, 364).

Based upon the foregoing, we therefore agree with the IAS Court that summary judgment in the Holzer defendants’ favor was precluded by triable issues of fact raised by the investigative police accident reports and the deposition testimony as to whether one or both of the infants were struck by the Holzer defendants’ vehicle while the infants unsuccessfully attempted to cross the New England Thruway, and whether defendant Donald Holzer had proper and reasonable control over his vehicle or failed and neglected to pay due regard to the existing condition of the road at the time of the accident. Concur — Sullivan, J. P., Milonas, Ellerin and Kassal, JJ.

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Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered January 3, 1991, which, inter alia, denied the cross-motion by defendants Donald Holzer, Kin Leasing Corp. and Kinney Motors, Inc. ("the Holzer defendants”) for summary judgment pursuant to CPLR 3212 dismissing the complaint, unanimously affirmed, without costs.

The infant plaintiff and her infant deceased sister were struck by a vehicle while attempting to cross the New England Thruway. The Court of Appeals has consistently stated that "[njegligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination” (Ugarriza v Schmieder, 46 NY2d 471, 474; see also, Andre v Pomeroy, 35 NY2d 361, 364).

Based upon the foregoing, we therefore agree with the IAS Court that summary judgment in the Holzer defendants’ favor was precluded by triable issues of fact raised by the investigative police accident reports and the deposition testimony as to whether one or both of the infants were struck by the Holzer defendants’ vehicle while the infants unsuccessfully attempted to cross the New England Thruway, and whether defendant Donald Holzer had proper and reasonable control over his vehicle or failed and neglected to pay due regard to the existing condition of the road at the time of the accident. Concur — Sullivan, J. P., Milonas, Ellerin and Kassal, JJ.

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Bluebook (online)

187 A.D.2d 386, 590 N.Y.S.2d 434, 1992 N.Y. App. Div. LEXIS 13111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoey-v-city-of-new-york-nyappdiv-1992.

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