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Disenhouse v. Universal Diagnostic Labs, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Apr 29, 1991
172 A.D.2d 799 (N.Y. App. Div. 1991)

Opinion

April 29, 1991

Appeal from the Supreme Court, Kings County (Shaw, J.).


Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion which was for summary judgment against Theodore Sexton is denied.

It is well settled that when a "suit is founded on a claim of negligence, the plaintiff will generally be entitled to summary judgment `only in cases in which there is no conflict at all in the evidence'" (Andre v. Pomeroy, 35 N.Y.2d 361, 364-365, citing 4 Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 3212.03; see also, Ugarriza v. Schmieder, 46 N.Y.2d 471, 475-476). In the case at bar, although there was appended to the plaintiffs' motion papers a police accident report in which it was alleged that the defendant Theodore Sexton had fallen asleep at the wheel, he denied this in his opposing affidavit and stated that his car was cut off by another car which made him leave the roadway. In such circumstances, summary judgment should not be granted against him since an "explanation of the defendant, if he gives one, will * * * be for the jury" (Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132, 135). Bracken, J.P., Kooper, Lawrence, Balletta and O'Brien, JJ., concur.


Summaries of

Disenhouse v. Universal Diagnostic Labs, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Apr 29, 1991
172 A.D.2d 799 (N.Y. App. Div. 1991)
Case details for

Disenhouse v. Universal Diagnostic Labs, Inc.

Case Details

Full title:GAVRIELA DISENHOUSE, an Infant, by Her Father and Natural Guardian, DAVID…

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

Date published: Apr 29, 1991

Citations

172 A.D.2d 799 (N.Y. App. Div. 1991)