Morowitz v. Naughton

• Decision Date: 15 May 1989
• Docket Number: No. 1,No. 2,1,2
• Citation: 150 A.D.2d 536,541 N.Y.S.2d 122
• Parties: Ruth MOROWITZ, Plaintiff-Appellant, v. Lawrence D. NAUGHTON, Defendant-Appellant, Edith Margone, Defendant-Respondent. (Action). Jack MARGONE, et al., Respondents, v. Lawrence D. NAUGHTON, Appellant. (Action).
• Court: New York Supreme Court — Appellate Division

Page 122

541 N.Y.S.2d 122

150 A.D.2d 536

Ruth MOROWITZ, Plaintiff-Appellant, v. Lawrence D. NAUGHTON, Defendant-Appellant, Edith Margone, Defendant-Respondent. (Action No. 1).

Jack MARGONE, et al., Respondents, v. Lawrence D. NAUGHTON, Appellant. (Action No. 2).

Supreme Court, Appellate Division Second Department.

May 15, 1989.

Stern & Altimari, Mineola (Anthony F. Altimari and Robert Charles Wirth, of counsel), for defendant-appellant in Action No. 1 and appellant in Action No. 2.

Levine & Grossman, Mineola (Scott D. Rubin and Terri Sabella, of counsel), for plaintiff-appellant in Action No. 1.

Benjamin Purvin, Lake Success, N.Y. (Arthur B. Colligan on the brief), for defendant-respondent in Action No. 1.

Fredric Lewis, New York City, for respondents in Action No. 2.

Before MANGANO, J.P., and KUNZEMAN, RUBIN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In consolidated actions to recover damages for personal injuries, etc., Lawrence D. Naughton, the defendant in Actions Nos. 1 and 2, appeals from an order of the Supreme Court, Nassau County (Brucia, J.), entered December 21, 1987, which granted a motion of the plaintiffs Jack and Edith Margone in Action No. 2 for summary judgment in their favor on the question of liability and granted the cross motion of the defendant Edith Margone in Action No. 1 for summary judgment dismissing the complaint in that action insofar as it is asserted against her and dismissing his cross claim against her, and Ruth Morowitz, the plaintiff in Action No. 1, appeals as limited by her brief, from so much of the order as granted the cross motion of the defendant Edith Margone in Action No. 1. The appeals bring up for review so much of an order of the same court, dated June 21, 1988, as, upon reargument, adhered to the original determination (CPLR 5517).

ORDERED that the appeals from the order entered December 21, 1987, are dismissed, as that order was superseded by the order dated June 21, 1988, made upon reargument; and it is further,

ORDERED, that the order dated June 21, 1988, is affirmed insofar as reviewed; and it is further,

ORDERED that the defendant-respondent in Action No. 1 and the plaintiffs-respondents in Action No. 2, appearing separately and filing separate briefs, are awarded one bill of costs.

The instant actions arise out of an automobile accident that occurred on August 8, 1986, in which the vehicle operated by the defendant Naughton, which was proceeding south on South Oyster Bay Road, crossed over the double lines and a fire lane, striking head-on a vehicle driven by Edith Margone in the northbound lane. Ruth Morowitz, the plaintiff in Action No. 1, was a passenger in the Margone vehicle. There was an eyewitness to the accident who was driving his car immediately next to the Margone vehicle.

While negligence cases do not generally lend themselves to resolution by motion for summary judgment, such a motion will be granted where, as here, the facts clearly point to the negligence of one party without any fault or culpable conduct by the other party (see, Viegas v. Esposito, 135 A.D.2d 708, 522...