Sullivan v. Welsh

Dillon, P. J., and Green, J. (dissenting).

We respectfully disagree that this case is in a proper posture for a grant of summary judgment dismissing plaintiff’s cause of action for wrongful *947death. It is alleged that on November 21, 1982, decedent sustained injuries in an automobile collision caused by defendants’ negligence, and that "[a]s a consequence of the injuries” he died on August 3, 1984. The death was the result of a suicidal act of the decedent.

It is established that "the act of suicide, as a matter of law, is not a superseding cause in negligence law precluding liability” (Fuller v Preis, 35 NY2d 425, 429). A negligent tort-feasor may be held liable for the suicide of a person who, as the result of the tort-feasor’s negligence, suffers mental disturbance destroying the will to survive (Fuller v Preis, supra; Koch v Fox, 71 App Div 288; cf., Gioia v State of New York, 16 AD2d 354). Key to the analysis is that the suicide be an involuntary act coming as a direct consequence of the alleged tortious act.

It is also established that a defendant moving for summary judgment must come forward with admissible evidence, reciting the material facts and showing, that, as a matter of law, the cause of action is without merit (CPLR 3212 [b]; GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965; Zuckerman v City of New York, 49 NY2d 557). Defendants have failed to meet that burden. While the moving papers and attached documents demonstrate that the suicide occurred nearly 21 months after the accident, that decedent had no medical history of organic brain damage, and that he had never been diagnosed or treated for mental illness or disturbance, defendants offered no affirmative medical proof that the suicidal act was not causally connected to their negligence. We, thus, conclude that Special Term properly denied defendants’ motion for summary judgment. (Appeal from order of Supreme Court, Erie County, Wolfgang, J. — summary judgment.) Present — Dillon, P. J., Boomer, Green, Balio and Lawton, JJ.