Gladding v. Pugach

In a negligence action, the defendant appeals from an order of the Supreme Court, Westchester County, dated January 17, 1963, which denied his motion to dismiss the complaint on the ground that it [1097] appears on its. face that it does not state facts sufficient to constitute a cause qf action (Rules Civ. Prac., rule 106, subd. 4). Order affirmed, with $10 costs and disbursements. While neither the bill of particulars served after answer nor the examination before trial may be considered on this motion, it is our opinion that the allegations of the complaint itself are sufficient to state a cause of action. It is alleged that, while plaintiff was a passenger in the defendant’s motor vehicle, it was “ involved in a collision ” on the public streets, with resultant injuries to plaintiff. The subsequent general charge of defendant’s “sole negligence” relates to the collision and constitutes in effect a charge that the automobile was negligently operated by defendant, which is sufficient (Lacovara v. Fleet Transp. Co., 12 A D 2d 957; Peterson v. Eighmie, 175 App. Div. 113; Wylie v. Stevens, 261 App. Div. 1031). Beldock, P. J., Ughetta, Christ, Hill and Rabin, JJ., concur.