Worden v. Enser

Jan 31, 2000
Versions:268 A.D.2d 582
702 N.Y.S.2d 843
2000 N.Y. App. Div. LEXIS 932

—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Orange County (Murphy, J.), dated October 7, 1998, which, upon an order of the same court dated July 31, 1998, granting the defendant’s motion for summary judgment, dismissed the complaint.

Ordered that the judgment is reversed, on the law, with costs, the order is vacated, and the motion is denied.

Contrary to the defendant’s contention, on this appeal from the final judgment dismissing the complaint, the plaintiff may challenge the propriety of an order dated October 30, 1997, denying his motion to strike the defendant’s answer. The appeal from the judgment brings up for review any intermediate *583order which necessarily affects the final judgment (see, CPLR 5501 [a] [1]; Matter of Neuner v Weyant, 63 AD2d 290). Nevertheless, the court providently denied the plaintiffs motion (see, McAllister v City of New York, 248 AD2d 598; Harris v City of New York, 211 AD2d 663).

However, there is merit in the plaintiffs argument challenging the award of summary judgment to the defendant dismissing the complaint. The defendant failed to establish, as a matter of law, that he did not operate his police car with reckless disregard for the safety of the plaintiff at the time it skidded into the rear of the plaintiffs pick-up truck which was stopped in traffic (see, Vehicle and Traffic Law § 1104 [e]; Campbell v City of Elmira, 84 NY2d 505; Gordon v County of Nassau, 261 AD2d 359; Foster v New York City Hous. Auth., 251 AD2d 42; Schaeffer v DiDomenico, 238 AD2d 931; Rouse v Dahlem, 228 AD2d 777). Santucci, J. P., S. Miller, Luciano and Feuerstein, JJ., concur.