Massicotte v. Malinowitz

11 A.D.2d 1051, 206 N.Y.S.2d 315, 1960 N.Y. App. Div. LEXIS 7758

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 17, 1960
• Status: Published

Opinion

In an action to recover damages for injuries to person and property, based upon the alleged negligence of defendants, the defendants appeal from an order of the Supreme Court, Kings County, entered March 10, 1960, granting the plaintiffs’ motion for summary judgment. Order reversed, with $10 costs and disbursements, and motion denied. In our opinion, the record presents issues of fact which should not have been summarily decided on motion. The mere showing of the skidding of defendants’ vehicle on a wet cobblestone pavement into plaintiffs’ parked vehicle does not establish negligence as a matter of law but presents a question of fact as to whether the defendant operator exercised reasonable care under the prevailing circumstances, which include the speed of the moving vehicle, the distance from which the parked vehicle was first noted, and the defendant’s alleged inability to stop in time to avoid an impact because of oncoming traffic (cf. Cutler v. Brockington, 10 A D 2d 712, motion for leave to appeal denied 10 A D 2d 860). On the question of contributory negligence, it is for the trier of the fact to determine whether the double parking of the plaintiffs’ vehicle, in darkness, and on a traffic lane of a public highway, without rear lights, were proximate causes of the accident (cf. Naeris v. New York Tel. Co., 6 A D 2d 196; Maloney v. Howard Johnson, Inc., 5 A D 2d 1015; Casella v. City of New York, 269 App. Div. 852, motion for leave to appeal denied 269 App. Div. 939). Nor should the question of credibility be determined upon a motion for summary judgment (Di Donna v. Sachs, 9 A D 2d 576). Nolan, P. J., Beldock, Christ, Pette and Brennan, JJ., concur.