# Ramcharan v. Angelo > Appellate Division of the Supreme Court of the State of New York · December 4, 1978 · 66 A.D.2d 774 URL: https://www.frixlaw.com/law-library/cases/5831178 ## Case - **Full name:** Kenneth Ramcharan v. Joseph Angelo - **Court:** Appellate Division of the Supreme Court of the State of New York - **Decided:** December 4, 1978 - **Citations:** 66 A.D.2d 774; 410 N.Y.S.2d 860; 1978 N.Y. App. Div. LEXIS 14048 - **Precedential status:** Published - **Opinion:** Dissent by Mollenhopkinsvoteplaintiffsmotion - **Judges:** Hopkins, Mollen, Motion, Plaintiffs, Vote - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5831178 ## Opinion text Mollen, P. J., and Hopkins, J., dissent and vote to reverse the order and grant plaintiffs’ motion, with the following memorandum: We find that there is no basis upon which the plaintiffs could be held to have been contributorily negligent, that the record affirmatively establishes that no factual issues exist with regard to the defendant Angelo’s actions and that liability is clearly and unequivocally indicated. Consequently, we conclude that a trial is not required to resolve the issue of liability. On August 18, 1976, three days after the accident, the defendant Angelo signed a Department of Motor Vehicles’ accident report in which he described the manner in which the accident occurred: "Car Nos. 2, 3, 4, stopped at toll booth on bridge. No. 1 could not stop, hit 2 in rear—2 hit 3—3 hit 4.” (Emphasis supplied.) During the course of his examination before trial, Angelo first stated that there was a distance of "20 yards maybe” from the point where he came out of the "hair-pin” turn to the toll booth. Angelo then added that he did not know the distance. Subsequent to that answer he stated that when he was 300 feet from the toll booth he saw the plaintiffs’ vehicle and also some other vehicles. Angelo testified that immediately prior to the collision his vehicle was proceeding at approximately 25 to 35 miles per hour. Angelo also testified that he didn’t remember sounding his horn before the accident; that he did not slam on his brakes prior to the impact; and that immediately prior to the collision he was applying "A slight degree of pressure” to the brakes. Submitted in opposition to plaintiffs’ motion for summary judgment was an affirmation from defendants’ counsel, to which was annexed a copy of Angelo’s examination before trial. Counsel for the defendants requested that the court study the page of the examination wherein Angelo indicated "his attention was distracted seconds before the impact by a horn beeping from a vehicle which was proceeding in the opposite direction.” On the cited page of the examination before trial, Angelo was asked the following questions and gave the following answers: "Q From the time that you put your car in second, and put your foot on the brake [approximately 300 feet from the toll booth] until the time the contact occurred between the cars did you have your attention on the toll booth in front of you the whole time? A Not all the time. Q Where else was your attention directed? A There was a car going by the other way, going towards the Kingston area. The horn beeped and I looked over. Q Aside from that? A *777 No, aside from that.” A reading of the above testimony discloses that, except for a momentary glance in the other direction, Angelo had his attention focused on the toll booth in front of him. The record does not support the statement contained in the majority decision that "Angelo stated that he lost sight of the car in front of him only because he reacted when another car sounded its horn.” In Andre v Pomeroy ( 35 NY2d 361, 364-365 ), Judge Wachtler, writing for the majority, stated: "But when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated. * * * Thus as a practical matter summary judgment continues to be a rare event in negligence cases. But this does not mean that the court is obliged, on policy grounds, to ferret out speculative issues 'to get the case to the jury,’ where the trial may disclose something the pretrial proceedings have not. It simply means, as one learned treatise observes, that when the 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, the defendant’s conduct fell far below any permissible standard of due care, and the plaintiff’s conduct either was not really involved (such as with a passenger) or was clearly of exemplary prudence in the circumstances.’ (4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3212.03)”. Plaintiff Peterkin, in his affidavit submitted in support of the motion for summary judgment, stated that at the time of the accident he was stopped behind two other vehicles which were also stopped to pay a toll at the Mid-Hudson Bridge and that he had both his headlights and taillights on. The said plaintiff further deposed that while he was waiting to move forward to pay the toll, his car was struck in the rear by a vehicle operated by the defendant Angelo. Notwithstanding the majority’s conclusion to the contrary, defendant Angelo’s testimony at the examination before trial does not contradict the afore-mentioned statements by Peterkin. Angelo did not testify that he did not see any lights on plaintiffs’ vehicle, but rather that he did not remember seeing any lights on their vehicle or on the two other vehicles that were stopped in front of the toll booth. We do not believe that the court should strain to find issues of fact where they are not genuinely present. Plaintiffs’ motion for summary judgment was well founded and, in our judgment, should have been granted (see Andre v Pomeroy, supra; Opalek v Oshrain, 33 AD2d 521 ). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5831178. Public record. Not legal advice.