Kopperman v. Zar — 62 Misc. 2d 940

Majority

p. 940

Paula Kopperman, Respondent-Appellant, v. Samuel Zar et al., Appellants-Respondents.

Supreme Court, Appellate Term, Second Department,

February 25, 1970.

p. 941

Bertram Herman for respondent-appellant. Ponzan & Goldblum (Albert P. Thill of counsel), for Samuel Zar, appellant-respondent. Fogarty & Nielsen (Douglas A. Boeckmann of counsel), for John J. Nieves, appellant-respondent.

While 'Special Term properly concluded that there are triable issues as to the negligence of the respective defendants, it was error to summarily determine that plaintiff passenger’s freedom from contributory negligence had been established. The resolution of this issue must await a plenary trial since it necessarily involves facts which are peculiarly within the knowledge of the moving party (Terranova v. Emil, 20 N Y 2d 493 ; Crocker-Citizens Nat. Bank v. L. N. Mag. Distrs., 26 A D 2d 667 ; Jensen v. Metropolitan Life Ins. Co., 27 A D 2d 934 ; Marine Midland Trust Co. of Northern N. Y. v. Macaluso, 30 AD 2d 932 ).

The order should be unanimously modified by deleting the finding that plaintiff did not, by her own negligence, contribute to the happening of the accident; as so modified, order affirmed, without costs.

Concur — Gboat, P. J., Binaldi and Cone, JJ.

Order modified, etc.

Cases cited

Terranova v. Emil 20 N Y 2d 493 N.Y. 1967-11-02 p. 941