Gaffey v. Nelson

Full title: REBECCA GAFFEY, PLAINTIFF-RESPONDENT, v. HAROLD NELSON, DEFENDANT-APPELLANT

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Oct 2, 2003

309 A.D.2d 1220 (N.Y. App. Div. 2003)

765 N.Y.S.2d 306

Opinion

CA 02-02812

October 2, 2003.

Appeal from an order of Supreme Court, Oswego County (McCarthy, J.), entered September 5, 2002, which denied defendant's motion to dismiss the complaint.

HANCOCK ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR DEFENDANT-APPELLANT.

AMDURSKY, PELKY, FENNELL WALLEN, P.C., OSWEGO (PAUL L. PELKY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: PIGOTT, JR., P.J., PINE, WISNER, SCUDDER, AND KEHOE, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum:

We affirm for reasons stated in the decision at Supreme Court, Oswego County (McCarthy, J.). We add only that the evidence submitted on the motion to dismiss does not conclusively establish that Buckley v. National Frgt. ( 90 N.Y.2d 210) is applicable under the facts of this case and bars plaintiff's action ( see generally Metrow v. St. John the Baptist R.C. Church, 225 A.D.2d 1101).