Summary
In Axelrod v. Armitstead (36 A.D.2d 593) a case on all fours with the case at bar, we reversed an order denying summary judgment and remitted for an assessment of damages.
Summary of this case from Pugh v. Chester Cab Corp.Opinion
February 18, 1971
Order, Supreme Court, Bronx County, entered July 28, 1970 denying application for summary judgment reversed, on the law, and summary judgment on the issue of liability granted in favor of the plaintiffs and the matter remitted for an assessment of damages. Appellants shall recover of respondents $50 costs and disbursements of this appeal. Plaintiff Jill Axelrod was a passenger in an automobile operated by defendant Thomas Armitstead and owned by defendant Edna Armitstead. At the time of the accident the car was being operated on a two-way street with one lane for moving traffic in each direction and room for parked cars on each side of the road. The weather was clear and the roadway dry. Visibility was good. The highway, within 150 to 200 feet of the scene of the accident, was straight. The front of defendant's automobile struck the rear of an automobile which was parked off the highway at a place where cars normally and usually are parked. At his examination before trial the defendant-operator testified that he did not see the parked car until he was approximately three feet from it. He was traveling at a speed of approximately 30 miles per hour. He testified that plaintiff did nothing to distract his attention from the highway. He provided no reason or justification for striking the parked car. In his affidavit in opposition to the motion for summary judgment defendant stated that there were street lights which provided light in the area of the collision and that his headlights were turned on. The record clearly establishes that this motorist failed to keep his automobile under control and failed to keep a proper lookout on the roadway ahead of him. The circumstances and conditions were such that in the exercise of ordinary prudence he ought to have seen the parked car and was bound to use the necessary care to avoid colliding with it. (See Shea v. Judson, 283 N.Y. 393.) Concededly defendant failed to notice the parked car until he was three feet away from it. He should have seen it much sooner. His negligence under the circumstances has been clearly established. We find no triable issue and no defense to this action. When the remedy of summary judgment was expanded to cover tort actions, the clear intent was to furnish another aid to relieve congested court calendars and to eliminate unnecessary expense to the litigants and the public where no issue of material fact is presented to justify a trial. (See Donlon v. Pugliese, 27 A.D.2d 786; Di Sabato v. Soffes, 9 A.D.2d 297; General Investment Co. v. Interborough R.T. Co., 235 N.Y. 133, 142-143; Dwan v. Massarene, 199 App. Div. 872, 880.)
Concur — Capozzoli, McGivern and Nunez, JJ.; Stevens, P.J., and Macken, J., dissent and vote to affirm on the basis that there exists an issue of fact as to defendant's negligence.