The New York Legal News Round Up
Define That Term #298

New York Court of Appeals Leaves Question of Fact to the Jury

Gavel2 The title of this post might seem to state the obvious, but in my experience, trial level and appellate courts seem all too eager to conclude that summary judgment is appropriate even where arguable issues of fact exist.

In Frutchey v Felicita  2008 NY Slip Op 06745, however, the New York Court of Appeals got it right in my opinion.  At issue was whether the defendant's motion for summary judgment was properly denied by the trial court.

The underlying facts of this personal injury lawsuit were set forth in the Third Department's decision:

This action arises out of a three-car accident that occurred on Route 427 in the Town of Ashland, Chemung County. At the time of the accident, it was snowing and the roadway was covered with two to three inches of slush. Defendant Jacqueline Felicita was traveling eastbound when she lost control of her vehicle and entered the westbound lane of travel where she collided with a westbound vehicle operated by Linda Nichols. Defendant Michael V. DeLosa was operating a westbound vehicle owned by defendant Allen's Plumbing, Heating and Air Conditioning, Inc. (hereinafter collectively referred to as defendants) behind Nichols and, when he observed Felicita cross over into his lane of travel, he immediately turned into the eastbound lane in an effort to avoid the collision. Unfortunately, Felicita's vehicle caromed off Nichols' vehicle back into the eastbound lane and collided with the vehicle driven by DeLosa...At the time of the accident, plaintiff Damon Frutchey, an infant, was a passenger in the Felicita vehicle and was seriously injured.

The Third Department concluded that the reaction of the operator of the vehicle owned by Allen's Plumbing was reasonable as a matter of law:

While it ordinarily is a question of fact as to whether a driver's response to an emergency is reasonable, where, as here, the evidence establishes the reasonableness of the driver's response, summary judgment is appropriate.

However, the New York Court of Appeals held that there were issues of fact regarding that driver's potential negligence,.  Specifically, the court noted that issues remained as to whether:

(1) defendant DeLosa acted negligently in traveling at an excessive speed and in following too  closely to Nichols's vehicle, given the road and weather conditions and, (2) if so, such negligence was a proximate cause of the accident (see Herbert v Morgan Drive-A-Way, 202 AD2d 886, 888-889 [1994]...

There were absolutely issues of fact regarding DeLosa'a negligence, and to grant summary judgment in DeLosa's favor effectively decided those factual issues rather than letting the trier of fact make that determination.  Fortunately, the Court of Appeals corrected this error, and these factual issues will now be resolved by the appropriate party.


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