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Defendant cannot escape summary judgement because of the death of a co-defendant – McCarthy by Bow v. Schor & Rosner, 196 N.Y.S.2d 139 (N.Y. Sup. Ct., 1959)


The issue in this case is whether a defendant in a truck accident personal injury case can escape summary judgement after the death of the co-defendant whose actions were the direct cause of the plaintiff’s injuries.

Defendant Stern was an employee of defendant Schor & Rosner. On October 31, 1958, Stern was driving a truck owned by Schor & Rosner when he backed into another vehicle, causing that vehicle to collide with the vehicle occupied by plaintiff McCarthy. As a result, plaintiff McCarthy was injured. McCarthy filed a personal injury lawsuit against Schnor & Rosner, and now moves for summary judgement. The court will grant the motion for summary judgment if the plaintiff can show that there is no genuine dispute as to any material fact, and that he is entitled to judgment as a matter of law.

Defendant Stern, the driver of the truck, died before he was served with the summons and complaint. Defendant Schor & Rosner does not deny the allegations in the complaint that Stern was driving the truck that day. However, Schor & Rosner denies knowing any of the specifics of the accident because the driver is no longer available to testify. Schor & Rosner asked the court permission to not be held to as high a standard of proof for this case because they are unable to know the details that led up to the accident. The court points out that following the accident, the company asked for and obtained a statement from the now deceased driver in reference to the circumstances surrounding the accident. In addition, the court contends that the Schor & Rosner is in fact in possession of an affidavit made by the driver and a copy of the accident report. Thus, the defendant does know the details that led up to the accident.

Defendant Schor & Rosner states that it is its understanding that the vehicle that Stern hit was parked illegally, and that there was no contact between their truck and the truck occupied by the injured plaintiff. They feel that they should not be held liable for the accident and plaintiff’s injuries. They contend that the driver of the vehicle that was illegally parked was the proximate cause of the accident. In order words, the defendant argued that the plaintiff is suing the wrong party.

On the other hand, the plaintiff contends that the evidence as to defendant’s fault in the accident is overwhelming. The police report and the statements taken from Stern all demonstrate that the accident was caused by Stern when he backed into the vehicle parked behind him. If Stern had not backed into that vehicle, the vehicle would not have hit the truck occupied by the plaintiff.

The plaintiff filed a motion for summary judgment, arguing that there is enough undisputed information to conclude that Stern was at fault in the accident. The court agreed that the contentions of the defendant do not warrant denial of the plaintiff’s motion for summary judgement. Furthermore, the court noted that this is not a case where the facts on which the motion for summary judgement are based are exclusively within the knowledge of the plaintiff. In fact, the summary judgement motion is based at least on part on a statement allegedly made by Stern to the investigator employed by defendant’s attorney. The only remaining issue is the determination of damages. This does not bar the granting of summary judgement. The defendant is entitled to particulars from the plaintiff with respect to the injuries suffered and damages sustained by the plaintiff.

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