Reed v. Lyman

44 A.D.2d 545, 353 N.Y.S.2d 475, 1974 N.Y. App. Div. LEXIS 5373

Opinion

Order, Supreme Court, New York County, entered on July 31, 1973, denying summary judgment on the issue of liability, unanimously reversed, on the law, and summary judgment is directed in favor of the plaintiff, and an assessment of damages is directed. Appellant shall recover of respondent $60 costs and disbursements of this appeal. The defendant entered his car in a garage with the motor having been left running by the attendant. He shifted from “neutral” to “drive”, and the vehicle raced forward to the pedestrian sidewalk and struck the passing plaintiff. The only indicated possible defense is the statement by the defendant’s counsel referring to evidence of a mechanical failure or malfunction of defendant’s automobile. However, no specific explanation is given nor is it given by the defendant himself. There being the clear inference of negligence on the part of the defendant and a failure to establish a genuine and substantial issue, summary judgment for the plaintiff is warranted. (Iandoli v. Lange, 35 A D 2d 793.) Concur—Markewich, J. P., Kupferman, Murphy, Tilzer and Lane, JJ.