Opinion
Argued December 6, 1999
January 31, 2000
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Orange County (Murphy, J.), dated October 7, 1998, which, upon an order of the same court dated July 31, 1998, granting the defendant's motion for summary judgment, dismissed the complaint.
Dickover, Donnelly, Donovan Biagi, LLP, Goshen, N.Y. (Michael H. Donnelly of counsel), for appellant.
Eliot L. Spitzer, Attorney-General, New York, N.Y. (Archibald F. Robertson, Jr., and Mary Lynn Nicolas of counsel), for respondent.
FRED T. SANTUCCI, J.P., SONDRA MILLER, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, on the law, with costs, the order is vacated, and the motion is denied.
Contrary to the defendant's contention, on this appeal from the final judgment dismissing the complaint, the plaintiff may challenge the propriety of an order dated October 30, 199 7, denying his motion to strike the defendant's answer. The appeal from the judgment brings up for review any intermediate order which necessarily affects the final judgment (see, CPLR 5501[a][1]; Matter of Neuner v. Weyant, 63 A.D.2d 290 ). Nevertheless, the court providently denied the plaintiff's motion (see, McAllister v. City of New York, 248 A.D.2d 598 ; Harris v. City of New York, 211 A.D.2d 663 ).
However, there is merit in the plaintiff's argument challenging the award of summary judgment to the defendant dismissing the complaint. The defendant failed to establish, as a matter of law, that he did not operate his police car with reckless disregard for the safety of the plaintiff at the time it skidded into the rear of the plaintiff's pick-up truck which was stopped in traffic (see, Vehicle and Traffic Law § 1104 Veh. Traf.[e]; Campbell v. City of Elmira, 84 N.Y.2d 505 ; Gordon v. County of Nassau, 261 A.D.2d 359 ; Foster v. New York City Hous. Auth., 251 A.D.2d 42 ;Schaeffer v. DiDomenico, 238 A.D.2d 931 ; Rouse v. Dahlem, 228 A.D.2d 777 ).
SANTUCCI, J.P., S. MILLER, LUCIANO, and FEUERSTEIN, JJ., concur.