Brodersen v. Katzman , 26 A.D.2d 693 ( 1966 )

In an action to recover damages for personal injury, medical expenses and loss of services, defendant appeals from an order of the Supreme Court, Westchester County, entered March 3, 1966, which granted plaintiffs’ motion for summary judgment and directed an assessment of damages. Order affirmed, with $20 costs and disbursements. The court unanimously agrees that, if liability were the sole issue, this would be a proper ease for the granting of summary judgment to plaintiffs. Defendant, with a disregard of caution, accelerated his ear into the rear of plaintiffs’ car which was stationary and waiting for a traffic light to change. Defendant’s negligence is clear. The dissenting Justices assert that a question of fact exists as to whether any injury at all was sustained, thus necessitating a plenary trial of all the issues (see Chmela v. Vought, 15 A D 2d 812; Smith v. Marbury, 18 A D 2d 936). That rule is inapplicable here. The proofs show that the injured plaintiff was hospitalized for three weeks after the accident for injuries sustained as a result thereof. This is a sufficient basis to narrow the necessity for proof to an assessment of damages. Christ, Acting P. J., Hill and Benjamin, JJ., concur; Brennan and Rabin, JJ., dissent and vote to reverse the order and to deny the motion on the ground that a question of fact is presented as to whether the plaintiff wife sustained any injury at all (Chmela v. Vought, 15 A D 2d 812; Smith v. Marbury, 18 A D 2d 936).