Henry v. Kuveke
| Decision Date | 30 July 2004 |
| Docket Number | 2002-11169.,2003-00008.,2002-11171.,2003-00007. |
| Citation | 2004 NY Slip Op 06255,781 N.Y.S.2d 114,9 A.D.3d 476 |
| Parties | WILLIAM R. HENRY et al., Appellants, v. TIMOTHY W. KUVEKE et al., Respondents, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the appeals from the orders dated October 18, 2002, October 28, 2002, and November 14, 2002, are dismissed, as no appeals lie from orders made upon the default of the appealing party (see CPLR 5511); and it is further,
Ordered that the order dated December 11, 2002, is modified, on the law and as a matter of discretion, by deleting the provision thereof denying that branch of the plaintiffs' motion which was to vacate the order dated October 18, 2002, and substituting therefor a provision granting that branch of the plaintiffs' motion to the extent of vacating so much of the order dated October 18, 2002, as granted that branch of the motion of the defendant County of Orange which was for summary judgment dismissing the claims alleging negligence in the design and maintenance of the intersection of Foley Road and Orange County Route 1 in the Town of Warwick related to obstructions of the sight-lines thereof, and otherwise denying that branch of the plaintiffs' motion; as so modified, the order is affirmed, without costs or disbursements, that branch of the motion of the defendant County of Orange which was for summary judgment dismissing the claims alleging negligence in the design and maintenance of the intersection of Foley Road and Orange County Route 1 in the Town of Warwick related to obstructions of the sight-lines thereof is denied and the order dated October 18, 2002, is modified accordingly.
On December 11, 1999, the plaintiffs' decedent, Kevin Henry (hereinafter Henry), sustained fatal injuries in a motor vehicle collision at the intersection of Foley Road and Orange County Route 1 (hereinafter CR 1) in the Town of Warwick. Moments before the collision, Henry had been driving his 1991 Toyota north on Foley Road. Henry should have brought his vehicle to a stop before crossing the intersecting CR 1. The stop sign controlling northbound traffic on Foley Road at its intersection with CR 1, however, was missing; apparently it had been dislodged from its post hours earlier by strong winds and, also before the accident, had been picked up and taken from the ground by the defendant Timothy W. Kuveke and/or one of his sons. Thus, when Henry reached the intersection, there was no stop sign. Moreover, because the view to the east was blocked by a wooded earth embankment, Henry could not see the oncoming vehicle owned by the defendant Tammy Warfield and driven by the defendant Norman Warfield, as it approached Foley Road from the east on CR 1. Henry proceeded into the intersection without stopping, where the Warfield vehicle struck Henry's Toyota on its right side, sending the Toyota spinning clockwise into the left front of the defendant Andrew Hirsch's Mazda, which had come to a stop southbound on Foley Road on the opposite side of CR 1.
The plaintiffs commenced this action, inter alia, to recover damages for Henry's conscious pain and suffering and wrongful death. The complaint alleged, among other things, that Hirsch and the Warfields were negligent in the manner in which they operated their vehicles, and that the County of Orange and the Town were negligent in the manner in which they maintained their respective roads. Additionally, the plaintiffs alleged that Kuveke and/or his sons (hereinafter the Kuveke defendants), had caused the accident by removing the stop sign.
On or about August 28, 2002, the Kuveke defendants moved for summary judgment dismissing the complaint insofar as against them, adducing proof, inter alia, that the stop sign had blown down from its sign post earlier on December 11, 1999, and that they did not cause the accident. On or about September 20, 2002, the County moved for summary judgment, adducing evidence that it had not received prior written notice that the stop sign had become dislodged from the sign post. On or about September 30, 2002, the Town moved for summary judgment dismissing the complaint insofar as asserted against it, adducing proof that maintenance of the stop sign, and the intersection, was the County's responsibility. In support, the Town proffered a...
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Byers v. Winthrop Univ. Hosp.
...a claim of law office failure should be supported by a “detailed and credible” explanation of the default at issue ( see Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114;see also Gironda v. Katzen, 19 A.D.3d 644, 645, 798 N.Y.S.2d 109), and conclusory and unsubstantiated claims of law o......
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...CPLR 2005 ). A claim of law office failure should be supported by a "detailed and credible" explanation of the default ( Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114 ; see Pursoo v. Ngala–El, 89 A.D.3d 712, 931 N.Y.S.2d 914 ; Uddaraju v. City of New York, 1 A.D.3d 140, 766 N.Y.S.2d ......
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