Monteleone v. Johnson

In an action to recover damages pursuant to General Obligations Law §§ 11-100 and 11-101, the defendant South-land Corporation appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Molloy, J.), dated September 28, 1989, as denied its motion for summary judgment dismissing the complaint insofar as it is asserted against it.

Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, the motion is granted, the complaint is dismissed insofar as it is asserted against the appellant, and the action against the remaining defendants is severed.

The evidence including the deposition testimony of the only survivor of a one-car collision, indicates that the plaintiffs decedent died upon an impact which occurred within seconds after the car left the road. Since the plaintiff did not dispute before Supreme Court the immediacy of the death, and seeks recovery only for his decedent’s conscious pain and suffering, and since the record demonstrates there was none, the motion for summary judgment should have been granted (see, Scheu v High-Forest Corp., 129 AD2d 366 ; cf., Wittman v Gilson, 120 AD2d 964 , affd 70 NY2d 970 ; Anderson v Rowe, 73 AD2d 1030 ). Brown, J. P., Kunzeman, Harwood and Rosenblatt, JJ., concur.