Petrone v. County of Nassau

305 A.D.2d 569, 759 N.Y.S.2d 363

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 19, 2003
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of (1) an order of the Supreme Court, Nassau County (McCarty, J.), dated July 9, 2002, as granted that branch of the motion of the defendant Circus Man Ice Cream Corp., which was for summary judgment dismissing the complaint insofar as asserted against it, and (2) an order of the same court dated November 6, 2002, as, in effect, upon renewal, adhered to the prior determination.

Ordered that the appeal from the order dated July 9, 2002, is dismissed, as that order was superseded by the order dated November 6, 2002, made, in effect, upon renewal; and it is further,

Ordered that the order dated November 6, 2002, is reversed insofar as appealed from, on the law, upon renewal, the order dated July 9, 2002, is vacated, that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Circus Man Ice Cream Corp., is denied, and the complaint is reinstated insofar as asserted against the defendant Circus Man Ice Cream Corp.; and it is further,

Ordered that one bill of costs is awarded to the plaintiffs.

There are issues of fact regarding, inter alia, proximate cause, requiring the denial of summary judgment. Ritter, J.P., Smith, Goldstein and H. Miller, JJ., concur.