Anderson v. Rowe
| Decision Date | 11 January 1980 |
| Citation | 73 A.D.2d 1030,425 N.Y.S.2d 180 |
| Parties | Robert ANDERSON, Individually and as Administrator of the Estates of Judy Anderson, Janet Anderson and Jane Anderson, Deceased, and Bonnie Anderson, Individually, Appellants, v. Donald A. ROWE, Respondent (And another action.) |
| Court | New York Supreme Court — Appellate Division |
Hurwitz & Fine, P. C., by James Gauthier, Buffalo, for appellants.
Chamberlain, D'Amanda, Bauman, Chatman & Oppenheimer by Louis D'Amanda, Rochester, for respondent.
Before CARDAMONE, J. P., and HANCOCK, SCHNEPP, CALLAHAN and MOULE, JJ.
The motion for summary judgment dismissing the claims for conscious pain and suffering brought by the administrator of the estate of Janet Anderson and Judy Anderson was properly granted. All of the evidence shows that these girls were killed instantly upon impact. The plaintiff was not able to present any evidence that they suffered any conscious pain. Nor was the plaintiff able to show evidence from which one might imply that the decedents were aware of the danger and suffered from pre-impact terror. Summary judgment was properly granted in the second action because it was not timely brought. Special Term did not abuse its discretion in denying plaintiff's motion to amend his complaint (CPLR 3025 subd. (b)).
Order unanimously affirmed without costs.
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