Lackner v. Roth, 1

• Decision Date: 29 October 1990
• Docket Number: No. 1,No. 2,No. 3,1,2,3
• Citation: 561 N.Y.S.2d 279,166 A.D.2d 686
• Parties: Joseph LACKNER, et al., Appellants, v. Susan ROTH, et al., Respondents (and two third-party actions) (Action). Joseph LACKNER, et al., Appellants, v. Kathleen TIERNEY, et al., Defendants third-party Plaintiffs, Rita J. Hill, Defendant-Respondent; George E. Roth, et al., third-party Defendants-Respondents (Action). Joan P. ABRAMS, Appellant, v. Patrick J. TIERNEY, et al., Defendants, George E. Roth, et al., Respondents (Action).
• Court: New York Supreme Court — Appellate Division

Page 279

561 N.Y.S.2d 279

166 A.D.2d 686

Joseph LACKNER, et al., Appellants, v. Susan ROTH, et al., Respondents (and two third-party

actions) (Action No. 1).

Joseph LACKNER, et al., Appellants, v. Kathleen TIERNEY, et al., Defendants third-party Plaintiffs, Rita J. Hill, Defendant-Respondent;

George E. Roth, et al., third-party Defendants-Respondents

(Action No. 2).

Joan P. ABRAMS, Appellant, v. Patrick J. TIERNEY, et al., Defendants, George E. Roth, et al., Respondents (Action No. 3).

Supreme Court, Appellate Division Second Department.

Oct. 29, 1990.

Profeta & Eisenstein, New York City (Jethro M. Eisenstein and Fred R. Profeta, Jr., of counsel), Glaser, Shandell & Blitz and Johnson, Tannen, Brecher, Fishman, Feit & Heller, P.C., New York City, for appellants Joseph Lackner, Joan Lackner and Joan P. Abrams (one brief filed).

Martin, Fallon & Mulle, Huntington (Richard C. Mulle, of counsel), for respondents Susan and George Roth.

Becker, Engelman & Remer, Lynbrook (Bonnie S. Kurtz, of counsel), for respondent Rita Hill.

Scalzi and Nofi Melville, New York City (Vincent J. Nofi, of counsel), for respondent Charles T. Kister (one brief filed).

Before THOMPSON, J.P., and BROWN, KUNZEMAN and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

In three related actions to recover damages for personal injuries, (1) Joseph Lackner and Joan Lackner, the plaintiffs in Action No. 1 and Action No. 2, appeal, as limited by their brief, (a) from so much of an order of the Supreme Court, Nassau County (McCabe, J.), entered May 4, 1989, as granted the cross motion of George and Susan Roth, the defendants third-party plaintiffs in Action No. 1, for summary judgment dismissing the complaint insofar as asserted against them, and (b) from so much of an order of the same court, also entered May 4, 1989, as granted the cross motion of George and Susan Roth, the third-party defendants in Action No. 2, for summary judgment dismissing the third-party complaint, and (2) Joan Abrams, the plaintiff in Action No. 3, appeals, as limited by her brief, from so much of an order of the same court, also entered May 4, 1989, as granted the cross motion of George and Susan Roth for summary judgment dismissing the complaint in Action No. 3 insofar as asserted against them.

ORDERED that the appeal from the order in Action No. 2 is dismissed; and it is further,

ORDERED that the orders in Action No. 1 and Action No. 3 are affirmed insofar as appealed from; and it is further,

ORDERED that the respondents, appearing separately and filing separate briefs, are awarded one bill of costs.

The appellants' allegations that the respondent George Roth acted unreasonably in the course of conduct he chose when confronted with an emergency situation represents nothing more than a claim that he made an error of judgment, a claim to which, under the circumstances, no liability may attach (see, Rowlands v. Parks, 2 N.Y.2d 64, 156 N.Y.S.2d 834, 138 N.E.2d 217; Meyer v. Whisnant, 307 N.Y. 369, 121 N.E.2d 372; Palmer v. Palmer, 31 A.D.2d 876, 297 N.Y.S.2d 428, affd. 27 N.Y.2d 945, 318 N.Y.S.2d 317, 267 N.E.2d 103). Also unavailing is the appellants' assertion that a question of fact exists as to whether George Roth was negligent in failing to keep a proper lookout. Assuming the truth of the appellant Joseph Lackner's testimony at an examination before trial, it is pure speculation to assume that the accident would have been avoided had Roth spotted the offending vehicle any earlier than he actually had (see, Rowlands v. Parks, supra; ...