Opinion
March 11, 1971
Order, Supreme Court, New York County, entered on October 16, 1969, granting plaintiff's motion for summary judgment in this wrongful death action, unanimously reversed, on the law, and the motion denied. Appellant shall recover of respondent $50 costs and disbursements of this appeal. The decedent was a passenger in a motor vehicle operated by her husband. The vehicle was under a long-term lease to corporate defendant-appellant, American Fabrics Company, Inc. The decedent's husband was president of the defendant-appellant and is the sole beneficiary of the decedent's estate. In order to bring this action he resigned as executor of the estate and his sister was appointed executrix in his place. She has brought this action to recover damages for wrongful death. It appears, further, that a third-party action was instituted against the decedent's husband, but was withdrawn at the request of the defendant-appellant. In the affidavits submitted at Special Term neither party demonstrated sufficient personal knowledge of how the accident occurred, in order to justify summary judgment in this matter. The decedent's husband claims a lack of knowledge of, or distorted memory with regard to, the operative facts. As between the defendant-appellant and the husband, the latter should have exclusive knowledge as to how the accident happened. Therefore, under the circumstances of this case, defendant is entitled to cross-examine this nonparty witness at a trial.
Concur — Stevens, P.J., Capozzoli, Nunez, McNally and Steuer, JJ.