122 A.D.2d 596 | N.Y. App. Div. | 1986
— Order unanimously affirmed, without costs. Memorandum: On February 12, 1983, plaintiff Judith Learch was driving her car east on Walworth-Marion Road in the Town of Marion, Wayne County, and collided with a pickup truck, owned and operated by defendant Edward Godfrey, traveling north on Maple Avenue. Also riding in plaintiff’s car were her husband Joseph
Plaintiff commenced this lawsuit for her own injuries and for the wrongful death and conscious pain and suffering of her deceased husband and child. Defendant Godfrey moved for summary judgment dismissing all claims and cross claims on the ground that there was no direct eyewitness testimony as to the cause of the first collision. Defendant Bartell cross-moved for summary judgment on the ground that there was no evidence from which a jury could determine that plaintiff’s decedents did not die as a result of the first collision and prior to the second collision.
Special Term properly denied the motions. The record reveals that although Mrs. Learch did not recall the happening of the first accident, she did recall that she was operating her vehicle with the headlights on and within the legal speed limit. She had the right-of-way because Godfrey’s approach to the intersection on Maple Avenue was controlled by a stop sign while her approach was not controlled by any sign or light. The record also indicates that Godfrey had .20% by weight of alcohol in his blood. This evidence, plus the positions of the Learch and Godfrey vehicles immediately following the first accident and the damage to each vehicle, raises a question of fact whether Godfrey was negligent.
The evidence also established that after the first accident several witnesses heard a child crying and saw Mr. Learch alive and heard him groaning in pain. The investigating officer also believed that Mr. Learch was alive after the first accident and died as a result of the second collision. Given the relaxed burden of a plaintiff’s proof in a wrongful death action (see, Noseworthy v City of New York, 298 NY 76), particularly where, as here, the plaintiff does not recall the accident (see,
Lastly, we find no abuse of discretion in Special Term’s consideration of the opposing affidavits and exhibits which, although served three days late, caused no prejudice to defendant Godfrey (see, Siegel Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2214:14, p 81). (Appeals from order of Supreme Court, Wayne, County, Rosenbloom, J. —summary judgment.) Present — Dillon, P. J., Boomer, Green, Pine and Lawton, JJ.