SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
July 8, 1968
CLARENCE J. VERMILYEA, AN INFANT BY CATHERINE VERMILYEA, HIS PARENT, ET AL., RESPONDENTS,
ROGER H. LEE ET AL., DEFENDANTS, AND LAWRENCE SCULLY, APPELLANT
In an automobile negligence action to recover damages, defendant Lawrence Scully appeals from order of the Supreme Court, Dutchess County, dated August 18, 1967, which denied his motion, pursuant to CPLR 3212, for summary judgment dismissing the complaint as against him.
Beldock, P. J., Christ, Rabin, Munder and Martuscello, JJ., concur.
In our opinion, the papers submitted herein clearly establish that nothing in appellant's conduct can be construed as having been a proximate cause of plaintiff's injuries. Therefore, there can be no liability on his part and no triable issue as to whether he was negligent (see Rivera v. City of New York, 11 N.Y.2d 856).
Order reversed, with $10 costs and disbursements, and motion granted.
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