Codd v Schultz

Annotate this Case

Download PDF

Codd v Schultz 2018 NY Slip Op 34138(U) October 9, 2018 Supreme Court, Erie County Docket Number: Index No. 813470/2016 Judge: Catherine Nugent-Panepinto Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] ERIE COUNTY CLERK 10/09/2018 12:07 PM NYSCEF DOC. NO. 22 INDEX NO. 813470/2016 RECEIVED NYSCEF: 10/09/2018 At a Special Term of the Supreme Court of the State of New York, held in and for the County of Erie at the Courthouse located at 92 Franklin Street Buffalo, New York on the 16th day of August, 2018. PRE SEN T : Hon. Catherine Nugent-Panepinto, J.S.C. STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE BRINT.CODD ORDER Plaintiff Index No.: 813470/2016 V. ELAINE SCHULTZ Defendant ELAINE SCmJLTZ Plaintiff Index No.: 807483/2017 v. BRINT. CODD Defendant Defendant Erin T. Codd, in the matter of Schultz v. Codd, Erie County Index No. 807483/2017, having moved this Court for an Order granting her summary judgment on the issue of negligence, dismissing Plaintiff Elaine Schultz's Complaint; or in the alternative, an Order joining the matter of Schultz v. Codd, Erie County Index No. 807483/2017 with the matter of Codd v. Schultz, Erie County Index No. 813470/2016 for a joint, bifurcated trial on the issue of negligence; and 1 of 4 [*FILED: 2] ERIE COUNTY CLERK 10/09/2018 12:07 PM NYSCEF DOC. NO. 22 INDEX NO. 813470/2016 RECEIVED NYSCEF: 10/09/2018 Defendant Elaine Schultz, in the matter of Codd v. Schultz, Eric County Index No. 813470/2016, having moved this Court for an Order finding that Plaintiff Erin Codd was comparatively negligent at the time of this accident and that her negligence was a substantial factor in causing the accident, and for an Order joining the matter of Schultz v. Codd, Erie County Index No. 807483/2017 with the matter of Codd v. Schultz, Erie County Index No. 813470/2016 for a joint, bifurcated trial on the issue of negligence; and Plaintiff Elaine Schultz, in the matter of Schultz v. Codd, Erie County Index No. 807483/2017, having cross-moved this Court for an Order for summary judgment on the issue of negligence, joining the matter of Schultz v. Codd, Erie County Index No. 807483/2017 with the matter of Codd v. Schultz, Erie County Index No. 813470/2016 for a joint trial, and dismissing Defendant Codd's affirmative defenses; and The motions having come on to be heard by this Honorable Court; and NOW upon reading and filing: Defendant Codd's Notice ofMotion, dated May 18, 2018 together with the Affirmation of Kevin J. Graff, Esq., dated May 18, 2018 with attached Exhibits "A" through ••H" submitted in support of the motion; Defendant Schultz's Notice ofMotion, dated June 29, 2018, together with the Affirmation of Leo T. Fabrizi, Esq., dated June 29, 2018 with attached Exhibits "A" through "H" submitted in support of the motion; Plaintiff Elaine Schultz's Notice of Cross-Motion, dated June 25, 2018, together with the Affirmation of John J. Flaherty, Esq., dated June 25, 20 I 8 with attached Exhibits "l" through "9" submitted in support of the motion and in opposition to Defendant Codd's motion; 2 of 4 [*FILED: 3] ERIE COUNTY CLERK 10/09/2018 12:07 PM NYSCEF DOC. NO. 22 INDEX NO. 813470/2016 RECEIVED NYSCEF: 10/09/2018 The Affirmation in Opposition of Charles H. Cobb, dated August 8, 2018 with attached Exhibits "A" and B" on behalf of Plaintiff Erin Codd submitted in opposition to Defendant Schultz's motion; The Reply Affirmation of Kevin J. Graff, Esq., dated August 9, 2018 on behalf of Defendant Erin Codd submitted in further support· of her motion and in opposition to Plaintiff Schultz's cross-motion; and The Reply Affirmation of Leo T. Fabrizi, Esq., dated August 12, 2018 on behalf of Defendant Elaine Schultz submitted in further support of her motion; and NOW upon hearing oral argument from LAW OFFICES OF JENNIFER S. ADAMS (Nicole B. Palmerton, Esq. of counsel) on behalf of Defendant Codd; LAW OFFICE OF JOHN J. FLAHERTY (John J. Flaherty, Esq. of counsel) on behalf of Plaintiff Schultz; LAW OFFICES OF JOHN WALLACE (Leo T. Fabrizi, Esq. of counsel) on behalf of Defendant Schultz; and WILLIAM MATT AR, P.C. (Charles H. Cobb, Esq. of counsel) on behalf of Plaintiff Codd; and after due deliberation by this Honorable Court, it is hereby ORDERED that as to both actions, Elaine Schultz is deemed to be negligent as a matter of law at the time of this accident, but there is a question of fact as to whether her negligence was a substantial factor in causing the accident, and is further ORDERED that as to both actions, all motions for summary judgment made by Elaine Schultz relative to the conduct of Erin Codd are in all respects DENIED; and it is further ORDERED that Plaintiff Elaine Schultz's motion to dismiss Defendant Codd's affirmative defenses as to assumption of risk, the seatbelt defense, and CPLR Article 16 is GRANTED, but the motion to dismiss the affirmative defense relative to the emergency doctrine is DENIED; and it further 3 of 4 [*FILED: 4] ERIE COUNTY CLERK 10/09/2018 12:07 PM NYSCEF DOC. NO. 22 INDEX NO. 813470/2016 RECEIVED NYSCEF: 10/09/2018 ORDERED that the matters of Schultz v Codd, Erie County Index No. 807483/2017 and Codd v Schultz, Erie County Index No. 813470/2016 shall be joined for a bifurcated trial on the issues of whether the negligence of Elaine Schultz was a substantial factor in causing the accident, and if so, whether Erin Codd was negligent, and if so, whether her negligence was a substantial factor in causing the accident, and if so, the apportionment of fault between the two drivers; and it is further ORDERED that this Order shall be filed in each of the above-captioned actions, and that the Erie County Clerk is hereby directed to accept such Order for filing in each of the abovecaptioned actions. SO ORDERED: 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.