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McNally v. Fitzgerald

260 A.D.2d 355 Court N.Y. App. Div. Decision date 1999-04-05 English

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p. 355
Peter McNally, Respondent, v Mary Fitzgerald, Respondent, Phillip C. Flynn et al., Appellants, et al., Defendants.
[686 NYS2d 313]

—In an action to recover damages for personal injuries, the defendants Phillip C. Flynn and Anne Flynn appeal from an order of the Supreme Court, Queens County (Kitzes, J.), dated April 2, 1998, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Ordered that the order is modified by adding thereto after the provision denying the appellants’ motion a provision that the denial is without prejudice to renewal upon the completion of discovery; as so modified, the order is affirmed, without costs or disbursements.

The appellant Anne Flynn was faced with an emergency similar to a situation in which a vehicle crosses over into an oncoming lane of traffic (see, e.g., Velez v Diaz, 227 AD2d 615 ; Williams v Econ, 221 AD2d 429 ; Greifer v Schneider, 215 AD2d 354 ), when the vehicle in which the plaintiff was a passenger spun around two or three times, crossed multiple lanes of traffic, and struck the Flynn vehicle. However, the record contains no evidence as to whether Anne Flynn’s actions in responding

p. 356
to the emergency situation were reasonable under the circumstances (see, Hentschel v Campbell Carpet Servs., 256 AD2d 500 ; Ayotte v Gervasio, 186 AD2d 963 , affd 81 NY2d 1062 ; Woolley v Coppola, 179 AD2d 991 ; Gaeta v Morgan, 178 AD2d 732 ). Thus, the appellants’ motion should be denied without prejudice to renewal upon the completion of discovery (see, CPLR 3212 [f]; Hentschel v Campbell Carpet Servs., supra). Bracken, J. P., Thompson, Goldstein and McGinity, JJ., concur.

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