Fiorentino v. Martin

9 A.D.3d 380, 779 N.Y.S.2d 365, 2004 N.Y. App. Div. LEXIS 9684

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 2004
• Status: Published

Opinion

an action to recover damages for personal injuries, the defendant Patricia Ann Hickey appeals from an order of the Supreme Court, Queens County (Golar, J.), dated August 25, 2003, which denied her motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her.

Ordered that the appeal from so much of the order as denied that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the appellant is dismissed as academic; and it is further,

Ordered that the order is reversed insofar as reviewed, on the law, that branch of the motion which was for summary judgment dismissing all cross claims insofar as asserted against the appellant is granted, and the cross claims insofar as asserted against the appellant are dismissed; and it is further,

Ordered that one bill of costs is awarded to the defendant Patricia Ann Hickey payable by the defendants Angel G. Martin and Anthony Martin.

The plaintiff has discontinued the action against the appellant. Therefore, the appeal from so much of the order as denied that branch of the appellant’s motion which was for summary judgment dismissing the complaint insofar as asserted against the appellant has been rendered academic.

The evidence presented by the appellant established, as a matter of law, that she was not at fault in the happening of the accident, and therefore, could not bear any culpability for the plaintiffs injuries (see Yusupov v Supreme Carrier Corp., 240 AD2d 660 [1997]). No triable issue of fact was raised in opposition. Ritter, J.P., Goldstein, Mastro and Fisher, JJ., concur.