Gallo v Otten
2024 NY Slip Op 02454
Decided on May 3, 2024
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on May 3, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., MONTOUR, OGDEN, DELCONTE, AND HANNAH, JJ.

321.1 CA 23-01144

[*1]ANTHONY P. GALLO, III, PLAINTIFF-RESPONDENT,

v

GERALD D. OTTEN, ELBERT VELDJESGRAAF, ADMIRAL-MERCHANTS MOTOR FREIGHT, INC., DEFENDANTS-APPELLANTS, ET AL., DEFENDANTS.




KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (JUSTIN L. HENDRICKS OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

SMITH, MURPHY & SCHOEPPERLE, LLP, BUFFALO (DENNIS P. MESCALL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.



Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered December 14, 2022. The order, inter alia, granted plaintiff's motion for summary judgment on the issue of the negligence of defendants Gerald D. Otten, Elbert Veldjesgraaf, and Admiral-Merchants Motor Freight, Inc., and seeking dismissal of those defendants' affirmative defenses based on plaintiff's alleged culpable conduct and assumption of the risk.

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

Entered: May 3, 2024

Ann Dillon Flynn

Clerk of the Court