Finz & Finz, P.C., Wins Assumption of Risk Appeal in Motor Vehicle Accident Case

Finz & Finz, P.C., represents a New York State Department of Motor Vehicles road test examiner who was injured while administering a road test to a driver license applicant who had a learner’s permit and was taking the road test for the first time.

The applicant, who was operating a motor vehicle that was owned and maintained by a driving school, struck a utility pole while attempting to make a right turn, causing the plaintiff examiner to sustain serious injuries. After the close of discovery, the defendant driving school and the defendant applicant moved for summary judgment, arguing that the plaintiff assumed the risk of riding with an unlicensed driver. The lower court agreed with the defendants and dismissed the Complaint.

Finz & Finz, P.C., appealed the dismissal of the Complaint to the Appellate DivisFion, Second Department, arguing that assumption of the risk is not a complete bar to recovery. On appeal, Finz & Finz, P.C., pointed out the fact that the cases cited by the lower court in support of its decision were decided prior to the legislature enacted CPLR §1411, which provides that assumption of risk is not a complete bar to recovery.

The Appellate Division, Second Department agreed with Finz & Finz, P.C., arguments and reversed the lower court’s decision dismissing the Complaint, holding that the plaintiff’s purported assumption of the risk does not bar recovery.

The winning appeal was drafted and argued by Joshua B. Sandberg of Finz & Finz, P.C.