Pollack v. Fitzgerald's Driving School, Inc.

Appellate Division of the Supreme Court of New York

Pollack v. Fitzgerald's Driving School, Inc.

272 A.D.2d 595, 708 N.Y.S.2d 165, 2000 N.Y. App. Div. LEXIS 6062

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 30, 2000

StatusPublished

This text of 272 A.D.2d 595 (Pollack v. Fitzgerald's Driving School, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pollack v. Fitzgerald's Driving School, Inc., 272 A.D.2d 595, 708 N.Y.S.2d 165, 2000 N.Y. App. Div. LEXIS 6062 (N.Y. Ct. App. 2000).

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Opinion

—In an action to recover damages for wrongful death, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Alpert, J.), entered July 29, 1999, as denied its cross motion for summary judgment dismissing the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, and the complaint is dismissed.

In support of its cross motion for summary judgment, the defendant submitted evidence demonstrating that it was not negligent in evaluating the driving ability of Helen Blody, and certifying that she had demonstrated “adequate basic skills” to drive without special adaptive devices for the physically impaired. In opposition to the cross motion, the plaintiff submitted the affidavit of a driver rehabilitation specialist, who had no personal knowledge of Blody’s medical condition, and who based his opinion upon general knowledge that stroke victims suffer perceptual and cognitive deficiencies. In any event, the expert’s affidavit was thus insufficient to establish that Blody suffered perceptual and cognitive deficiencies which rendered her unable to drive safely. The expert did not indicate that Blody had any perceptual or cognitive difficulties which may have caused or contributed to the accident which killed the plaintiff’s decedent. The affidavit contained no evidence that the defendant departed from an accepted standard of care within the rehabilitative driving school industry in evaluating Blody’s driving skills. Under these circumstances, the plaintiff failed to raise an issue of fact as to whether the defendant negligently evaluated Blody’s driving ability, and, if so, whether any such negligence was a proximate cause of the accident (see, Romano v Stanley, 90 NY2d 444; Phillips v McClellan St. Assocs., 262 AD2d 748; Aghabi v Sebro, 256 AD2d [596]*596287). Bracken, J. P., Sullivan, Altman and Krausman, JJ., concur.

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—In an action to recover damages for wrongful death, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Alpert, J.), entered July 29, 1999, as denied its cross motion for summary judgment dismissing the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, and the complaint is dismissed.

In support of its cross motion for summary judgment, the defendant submitted evidence demonstrating that it was not negligent in evaluating the driving ability of Helen Blody, and certifying that she had demonstrated “adequate basic skills” to drive without special adaptive devices for the physically impaired. In opposition to the cross motion, the plaintiff submitted the affidavit of a driver rehabilitation specialist, who had no personal knowledge of Blody’s medical condition, and who based his opinion upon general knowledge that stroke victims suffer perceptual and cognitive deficiencies. In any event, the expert’s affidavit was thus insufficient to establish that Blody suffered perceptual and cognitive deficiencies which rendered her unable to drive safely. The expert did not indicate that Blody had any perceptual or cognitive difficulties which may have caused or contributed to the accident which killed the plaintiff’s decedent. The affidavit contained no evidence that the defendant departed from an accepted standard of care within the rehabilitative driving school industry in evaluating Blody’s driving skills. Under these circumstances, the plaintiff failed to raise an issue of fact as to whether the defendant negligently evaluated Blody’s driving ability, and, if so, whether any such negligence was a proximate cause of the accident (see, Romano v Stanley, 90 NY2d 444; Phillips v McClellan St. Assocs., 262 AD2d 748; Aghabi v Sebro, 256 AD2d [596]*596287). Bracken, J. P., Sullivan, Altman and Krausman, JJ., concur.

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Bluebook (online)

272 A.D.2d 595, 708 N.Y.S.2d 165, 2000 N.Y. App. Div. LEXIS 6062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pollack-v-fitzgeralds-driving-school-inc-nyappdiv-2000.

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