Benamy v. City of New York

270 A.D.2d 183, 705 N.Y.S.2d 225

Opinion

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about October 8, 1999, which denied the motions for summary judgment of plaintiff Clara Benamy, as executrix of the Estate of Anne Goldiner, in action No. 1, and plaintiff Lalita Satup in action No. 4, and denied the cross motion for summary judgment of defendants Caravan Bus Service, Inc. and the Estate of Joseph Viola, unanimously affirmed, without costs.

In this case, a bus accident occurred after the driver apparently suffered a fatal heart attack. On this record, numerous factual questions are presented as to the foreseeability of the driver’s incapacity and the ensuing accident given the driver’s history of high blood pressure and his condition on the morning of the accident, at which time he complained of lack of sleep, pain in his hands and sweatiness, and was advised to obtain a substitute driver (cf., State of New York v Susco, 245 AD2d 854). These factual issues precluded the grant of both plaintiffs’ and defendants’ motions for summary judgment. Concur — Rosenberger, J. P., Williams, Tom and Andrias, JJ.