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Lazofsky v. City of New York

Appellate Division of the Supreme Court of New York, First Department
Dec 3, 1964
22 A.D.2d 858 (N.Y. App. Div. 1964)

Opinion

December 3, 1964


Judgment insofar as it directs execution in favor of plaintiff Herbert Lazofsky in the sum of $22,771, unanimously modified, on the law and on the facts, to the extent of vacating that part of the judgment and granting a new trial as to said plaintiff, and, as so modified, affirmed, with $50 costs to defendants-appellants, unless said plaintiff stipulates to accept $12,500 in lieu of the award by verdict, in which event the judgment is modified to that extent, and is affirmed as thus modified, with $50 costs to defendants-appellants. In this personal injury action it is evident that the jury verdict as to the said plaintiff is excessive in its award of damages and that a verdict in excess of $12,500 is not warranted by the record. In the event this case is retried, defendants are not entitled to a charge as requested by them that the negligence, if any, of plaintiff Sidette Lazofsky is to be imputed to the plaintiff Herbert Lazofsky. At common law a licensed driver accompanying a learner is not liable for the negligence of the learner. (4 N.Y. Jur., Automobiles, § 423; Sardo v. Herlihy, 143 Misc. 397.) However, a licensed driver accompanying a learner may be held liable when he neglects to use reasonable care as an instructor. ( Wolpert v. Garrett, 278 App. Div. 893; Spaulding v. Mineah, 239 App. Div. 460, affd. 264 N.Y. 589. ) The licensed driver is not in the position of the master of the learner-driver and negligence of the learner-driver is therefore not imputable to him. ( Wolpert v. Garrett, supra.) The licensed driver owes, however, the duty of general care in the supervision of the learner-driver. Further, the licensed driver is not in the same position as a passenger as charged by the court. If the learner-driver is negligent, it is the duty of the licensed driver to take the necessary measures to have the learner-driver cease and desist his negligent conduct since the statute (Vehicle and Traffic Law, § 501, subd. 4, par. b) places control of the learner-driver in the licensed driver which is not so in the case of a passenger. Settle order on notice.

Concur — Botein, P.J., Breitel, Valente, McNally and Stevens, JJ.


Summaries of

Lazofsky v. City of New York

Appellate Division of the Supreme Court of New York, First Department
Dec 3, 1964
22 A.D.2d 858 (N.Y. App. Div. 1964)
Case details for

Lazofsky v. City of New York

Case Details

Full title:SIDETTE LAZOFSKY et al., Respondents. v. CITY OF NEW YORK…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 3, 1964

Citations

22 A.D.2d 858 (N.Y. App. Div. 1964)

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