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O'ROURK v. BERNER

249 A.D.2d 975 (1998)

672 N.Y.S.2d 216

Patricia A. O'Rourk et al., Plaintiffs, v. Robert J. Berner et al., Defendants. Robert J. Berner et al., Third-Party Plaintiffs-Appellants, v. Susan O'Rourk, Third-Party Defendant-Respondent. (Appeal No. 1.)

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

April 29, 1998

Judgment unanimously affirmed without costs.

Memorandum:

This personal injury action arises from a motor vehicle accident on May 24, 1993 that was caused by defendant Robert J. Berner's failure to yield the right of way to third-party defendant. Dismissal of the third-party complaint is not against the weight of the evidence in view of the proof that third-party defendant had no opportunity to avoid the accident. We therefore affirm the judgment dismissing...

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