Malatesta v. Hopf

Mahoney, P. J., and Kane, J.,

dissent and vote to reverse in a memorandum by Kane, J. Kane, J. (dissenting). In our view, it was error for Supreme Court to charge the "emergency rule” under the circumstances presented in this case. The only witness able to provide any description of the operation of the vehicles immediately prior to the accident was the operator of the tractor trailer, fourth-party defendant Curtis A. Spiva. Hopf, operator of the Volkswagen in which plaintiff was a passenger, was killed in the accident and plaintiff has no recollection of the events immediately prior or…