Simmons v. City of New York

Appellate Division of the Supreme Court of New York

Simmons v. City of New York

146 A.D.2d 624, 538 N.Y.S.2d 453, 1989 N.Y. App. Div. LEXIS 416

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

DecidedJanuary 17, 1989

StatusPublished

Cited by1 cases

This text of 146 A.D.2d 624 (Simmons 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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Simmons v. City of New York, 146 A.D.2d 624, 538 N.Y.S.2d 453, 1989 N.Y. App. Div. LEXIS 416 (N.Y. Ct. App. 1989).

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Opinion

— In a negligence action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bernstein, J.), dated January 29, 1988, which denied his motion for partial summary judgment on the issue of liability.

Ordered that the order is affirmed, with costs.

While we conclude that the evidence presented by the plaintiff is sufficient to create issues of fact which would permit a jury to infer that the defendants were negligent (see, e.g., Loeffler v Rogers, 136 AD2d 824), we do not find the excerpts of the plaintiffs vague examination before trial testimony submitted in support of his motion for summary judgment to be so convincing or compelling as to render such an inference inescapable (see generally, George Foltis, Inc. v City of New York, 287 NY 108; Farina v Pan Am. World Airlines, 116 AD2d 618). Indeed, this testimony, which was also appended to an affirmation of the defendants’ counsel in opposition to the motion (see, Alvarez v Prospect Hosp., 68 NY2d 320; Olan v Farrell Lines, 64 NY2d 1092), sufficed to raise issues with respect to whether the accident was caused by the sudden deflation of a tire on the vehicle operated by the plaintiff and whether the plaintiff was guilty of culpable conduct with respect to the accident. Accordingly, a trial is necessary to determine the merits of these issues. Mollen, P. J., Bracken, Sullivan and Harwood, JJ., concur.

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— In a negligence action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bernstein, J.), dated January 29, 1988, which denied his motion for partial summary judgment on the issue of liability.

Ordered that the order is affirmed, with costs.

While we conclude that the evidence presented by the plaintiff is sufficient to create issues of fact which would permit a jury to infer that the defendants were negligent (see, e.g., Loeffler v Rogers, 136 AD2d 824), we do not find the excerpts of the plaintiffs vague examination before trial testimony submitted in support of his motion for summary judgment to be so convincing or compelling as to render such an inference inescapable (see generally, George Foltis, Inc. v City of New York, 287 NY 108; Farina v Pan Am. World Airlines, 116 AD2d 618). Indeed, this testimony, which was also appended to an affirmation of the defendants’ counsel in opposition to the motion (see, Alvarez v Prospect Hosp., 68 NY2d 320; Olan v Farrell Lines, 64 NY2d 1092), sufficed to raise issues with respect to whether the accident was caused by the sudden deflation of a tire on the vehicle operated by the plaintiff and whether the plaintiff was guilty of culpable conduct with respect to the accident. Accordingly, a trial is necessary to determine the merits of these issues. Mollen, P. J., Bracken, Sullivan and Harwood, JJ., concur.

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Bluebook (online)

146 A.D.2d 624, 538 N.Y.S.2d 453, 1989 N.Y. App. Div. LEXIS 416, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-city-of-new-york-nyappdiv-1989.

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