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Ruotolo v. Ambu-Wagon, Inc.

206 A.D.2d 416 Court N.Y. App. Div. Decision date 1994-07-11 English

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p. 416
Mary P. Ruotolo, by Her Mother and Natural Guardian, Catherine Ruotolo, Respondent, v Ambu-Wagon, Inc., et al., Defendants and Third-Party Plaintiffs-Appellants. Rajanikant Shah et al., Third-Party Defendants-Respondents. (Action No. 1.) Theresa Bottiglieri, by Her Father and Natural Guardian, Luke Bottiglieri, et al., Respondents, v Ambu-Wagon, Inc., et al., Defendants and Third-Party Plaintiffs-Appellants. Rajanikant Shah et al., Third-Party Defendants-Respondents. (Action No. 2.)
[616 NYS2d 197]

In separate actions to recover damages for personal injuries, the defendants third-party plaintiffs appeal from an order of the Supreme Court, Westchester County (Gurahian, J.), entered November 19, 1992, which granted the third-party defendants’ motion for summary judgment dismissing the third-party complaint.

Ordered, that the order is affirmed, with costs.

While negligence cases do not generally lend themselves to resolution by motion for summary judgment, such a motion will be granted where, as here, the unrefuted facts clearly point to the negligence of the decedent, the defendant Richards, without any fault or culpable conduct by the third-party defendant Rajanikant Shah (see, Wank v Ambrosino, 307 NY 321 , 323-324; Forbes v Plume, 202 AD2d 821 ; Morowitz v Naughton, 150 AD2d 536 , 537; Carter v County of Erie, 98 AD2d 963 ; Mildner v Wagner, 89 AD2d 638 ). The evidence revealed, as a matter of law, that Shah was confronted with a sudden and unanticipated situation which left him with only seconds to react. Thus, the emergency doctrine is applicable and Shah cannot be held liable for the accident (Rivera v New York City Tr. Auth., 77 NY2d 322 , 326; Rowlands v Parks, 2

p. 417
NY2d 64 , 66-67; Rivas v Metropolitan Suburban Bus Auth., 203 AD2d 349 ; Denicker v Denicker, 173 AD2d 516 ). Thompson, J. P., O’Brien, Ritter and Krausman, JJ., concur.

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