Andre v. Pomeroy

Chief Judge Breitel

(dissenting). I dissent and would affirm the order of the Appellate Division. Defendant Pomeroy’s negligence was not established as a matter of law, the only basis for granting summary judgment.

Professor Siegal has stated succinctly: “ The very question of whether the defendant’s conduct amounts to ‘ negligence ’ is inherently a question for the fact-trier in all but the most egregious instances. Even the so-called ‘ rear-end ’ collision, the one most presumptively favorable to the plaintiff, can readily be shown to present factors necessitating trial ” (Siegel, Practice…