Small v. Tyres

In a negligence action to recover damages for personal and property injuries, defendants appeal from an order of Supreme Court, Westchester County, dated May 26, 1969, which granted plaintiff’s motion for summary judgment. Order reversed, on the law, without costs, and motion denied. Plaintiff stopped his automobile for a red light on 60th Street at the comer of York Avenue, in the Borough of Manhattan. Defendant Nicholson, operator of an automobile owned by his employer, defendant Tyres, had parked that vehicle on the downhill portion of 60th Street, facing York Avenue. The car had been left unattended and suddenly began to roll and eventually bit the back of plaintiff’s car. The moving papers stated that defendants did not properly park their car on a hill; that the brakes were not in working order; that this was in violation of subdivision (a) of section 1210 of the Vehicle and Traffic Law; and that the only permissible inference to be drawn is that defendants’ failure to comply with the statute was the cause of the accident. Plaintiff’s moving affidavit also incorporated portions of his examination of defendants before trial, in which defendants testified that their ear had been purchased approximately two months before the accident and that the brakes had been inspected. The opposing papers stated that the parking brake was on and that the wheels were turned in towards the curb. In our opinion, it was an improvident exercise of discretion by Special Term to grant plaintiff’s motion for summary judgment. The issue of negligence and other relevant issues should be tried and determined by a jury (Pfaffenbach v. White Plains Express Corp., 17 N Y 2d 132). A violation of the above-cited provision of the Vehicle and Traffic Law is only one factor to he considered in determining negligence and is to be evaluated in light of the general doctrine of proximate cause (Waldorf v. Sorbo, 10 A D 2d 226, affd. 9 N Y 2d 703). Hopkins, Acting P. J., Munder, Martuscello, Brennan and Benjamin, JJ., concur.