Fennell v. Mcgee , 213 N.Y.S.2d 924 ( 1960 )

Mario Pittoni, J.

Plaintiff’s motion for summary judgment is granted.

The plaintiff was a passenger who was seated in a car that had been parked at a curb for about five minutes when her car was struck in the rear by the one operated hy the defendant. The defendant admits that he brought his car to a halt in back of the plaintiff’s, but then while his motor was still running, his automatic transmission was in ‘ ‘ drive ’ ’ and without any brake on he decided to fix his heater. He lowered his head down onto the seat, his car shot forward, there was contact with the plaintiff’s car and the plaintiff passenger was injured. The defendant does not dispute these facts; he merely disputes the force' of the impact and the injuries. There is no issue of fact as to the occurrence; the plaintiff was free of contributory negligence and the defendant was clearly negligent as a matter of law. (Borkin v. Smith, N. Y. L. J., Oct. 9, 1959, p. 16, col. 2.)

As for the injuries, the report of Dr. Vosburgh and the report of the defendant’s physician show that they were substantial. The only issue left to be tried is as to damages.