Burdick v. Horowitz

56 A.D.2d 882, 392 N.Y.S.2d 666, 1977 N.Y. App. Div. LEXIS 11262

Opinion

injuries, plaintiff appeals from an order of the Supreme Court, Nassau County, entered July 16, 1976, which denied her motion for partial summary judgment on the issue of control of the accident site. Order modified by adding thereto a provision that defendants will be bound at the trial by the concession made by their attorney at the examination before trial as to their control of the "areaway” where the accident took place. As so modified, order affirmed, with $50 costs and disbursements to plaintiff. We agree with Special Term that the issue is "too fragmentary” to warrant partial summary judgment. However, this court will not permit a litigant to disavow a stipulation which was made so as to preclude a certain line of questioning at a pretrial deposition. Therefore, although we are affirming the denial of partial summary judgment because of a "fragmentary” issue, defendants should be bound by their attorney’s concession as to their control of the accident site. Rabin, Acting P. J., Shapiro, Titone and O’Connor, JJ., concur.