Bundt v. Embro

27 A.D.2d 931, 278 N.Y.S.2d 770, 1967 N.Y. App. Div. LEXIS 4507

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 1967
• Status: Published

Opinion

Order of the Supreme Court, Queens County, dated November 9, 1966, denying three motions for summary judgment, one by appellant Peckham Road Corporation, one by the other appealing defendants, and one hy the nonappealing defendant, modified to the extent of granting the motions of the appealing defendants as to plaintiffs who were plaintiffs in Actions Nos. 1 and 3 before the actions were consolidated, namely plaintiffs Bundt, Mondini (three) and Ferrario. As so modified, order affirmed insofar as appealed from, without costs. In September, 1962 two cars collided at an intersection in Greene County, New York. The three actions thereafter commenced were consolidated and, in the consolidated action, appellants, whose answers alleged the defense of satisfaction and discharge, moved for summary judgment on the ground that plaintiffs Bundt, Mondini and Ferrario, during the pendency of the three actions, had accepted payments of judgments obtained by them against the State of New York in the Court of Claims for injuries caused in the collision. In our opinion, appellants’ motions should have been granted as to said plaintiffs. The papers submitted at Special Term showed only that the State was concurrently negligent with appellants and defendant Embro and that, because of the State’s concurrent negligence, the said plaintiffs had recovered the judgments aaginst it. Having shown a satisfaction of damages, appellants were entitled to a dismissal of said plaintiffs’ consolidated actions (Walsh v. New York & Hudson Riv. R. R. Co., 204 N. Y. 58, 62-63; cf. Matter of Parchefsky v. Kroll Bros., 267 N. Y. 410; see Court of Claims Act, § 8). Ughetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.