Dawn M. Polak, Plaintiff-Respondent, v. FARLEY

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Supreme Court, Appellate Division, Fourth Department, New York.

David W. POLAK, Plaintiff, Dawn M. Polak, Plaintiff-Respondent, v. Victor FARLEY, Esq., Public Administrator of the Estate of Stanley Dorka, Jr., Deceased, and Joan M. Karczewski, Defendants-Appellants.

Decided: June 14, 2002

Present:  PINE, J.P., WISNER, KEHOE, GORSKI, and LAWTON, JJ. Law Offices of John Quackenbush, Buffalo (Alan J. Bedenko of counsel), for defendants-appellants. Law Offices of Paul A. Bender, Buffalo (Daniel R. Archilla of counsel), for plaintiff-respondent.

 Plaintiffs commenced this action to recover damages for personal injuries that they sustained when a vehicle owned by Stanley Dorka, Jr. and driven by defendant Joan M. Karczewski allegedly failed to stop at a stop sign and collided with their vehicle.   Supreme Court erred in granting the motion of Dawn M. Polak (plaintiff) seeking summary judgment dismissing the counterclaim against her.   In support of her motion, plaintiff asserted that the insurance adjuster for Dorka had accepted full responsibility for plaintiffs' property damage claim, orally and in writing, during the adjustment of that claim.   Contrary to plaintiff's contention, statements made by an insurance adjuster in an attempt to settle a claim prior to the commencement of an action on a related claim “are not admissible as a concession of liability” in the action (Collins v. Hayden on the Hudson Condominium, 223 A.D.2d 434, 435, 637 N.Y.S.2d 51).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the counterclaim is reinstated.

MEMORANDUM: