Kuebler v. Kuebler

Garni and Lindley, JJ. (dissenting).

Although we concur in the result reached by the majority, we write separately to address defendant’s contention, with which we agree, that the culpable conduct of plaintiff includes conduct that is properly characterized as implied assumption of risk (see Arbegast v Board of Educ. of S. New Berlin Cent. School, 65 NY2d 161, 170 [1985]). It is well settled that “a plaintiff who has been licensed by the State of New York to operate a motor vehicle and who voluntarily accompanies a defendant, who has just received a learner’s permit, in defendant’s car for the…