Opinion
November 17, 1977
Appeal from the City Court of the City of Long Beach, Nassau County, JACK MACKSTON, J.
Jules B. St. Germain for appellants.
Henri A. Demers for respondents.
MEMORANDUM.
Order of the court below ( 89 Misc.2d 1078) modified to the extent of striking the provisions requiring plaintiffs to appear at an examination, complaint reinstated, and, as so modified, affirmed, without costs.
The failure of the Legislature to include districts other than school and fire districts in section 50-h Gen. Mun. of the General Municipal Law indicates that the exclusion of other districts was intended. It is not for the courts to correct supposed errors, omissions or defects in legislation ( Meltzer v Koenigsberg, 302 N.Y. 523; Martin v Martin, 58 Misc.2d 459; see, generally, McKinney's Cons Laws of NY, Book 1, Statutes, §§ 73, 74). Any possible omission in section 50-h should be remedied by the Legislature, not by the court.
Moreover, it is our view that the court properly denied plaintiffs' motion for summary judgment striking the affirmative defense of contributory negligence as against the plaintiff passengers in the present posture of the case. This negligence action arose out of a collision in which the four plaintiffs, a driver and three passengers, were in one of the vehicles. Generally, the courts have been manifestly reluctant to grant summary judgment in automobile negligence cases because of their concern to preserve a party's right to trial (see Connell v Buitekant, 17 A.D.2d 944; Small v Tyres, 33 A.D.2d 1055; see, also, the following Appellate Division, Second Department, cases: Harvey v Dileno, 35 A.D.2d 668; Cicero v Clark, 23 A.D.2d 583; Thum v Zraick, 12 A.D.2d 772; Donahue v Romahn, 10 A.D.2d 637; Phelan v Houghton, 9 A.D.2d 767). There are times when summary judgment must be denied although there is no dispute as to how the accident occurred ( Cooper v Greyhound Bus Corp., 13 A.D.2d 173, 174). Further, the doctrine of comparative negligence applies to the case at bar. By virtue thereof, the defendants now have the burden of pleading and proving contributory negligence, characterized as "culpable conduct" (CPLR 1412). The courts have been reluctant to grant summary judgment where there may be defenses that depend upon knowledge in the possession of the movant which can be disclosed by cross-examination or an examination before trial ( Terranova v Emil, 20 N.Y.2d 493, 497). Undeniably, there are circumstances in which a passenger may be contributorily negligent in a negligence action against a third party (see, e.g., 4A N Y Jur, Automobiles and Other Vehicles, § 836; Kalechman v Drew Auto Rental, 33 N.Y.2d 397, 401). Therefore, as above indicated, denial of the motion in behalf of plaintiff passengers to dismiss the affirmative defense of contributory negligence was proper ( Kopperman v Zar, 62 Misc.2d 940; cf. Rodriguez v Gambetta, 52 Misc.2d 189).
GLICKMAN, P.J., PITTONI and SILBERMAN, JJ., concur.