Segal v. Segal

73 A.D.2d 586, 423 N.Y.S.2d 168, 1979 N.Y. App. Div. LEXIS 14366

Opinions

Interlocutory judgment, Supreme Court, New York County, entered May 24, 1979, after a nonjury trial, adjudicating the issue of liability in favor of plaintiffs and determining that plaintiffs shall recover from defendant Abram Segal upon the ultimate determination of damages one third of such damages, so far as appealed from by said defendant, is affirmed, with costs to plaintiffs. On this record, negligence, proximate cause, and apportionment of liability as against said defendant all presented questions of fact (Pfaffenbach v White Plains Express Corp., 17 NY2d 132, 135; Dole v Dow Chem. Co., 30 NY2d 143, 149). We do not think we should interfere with the determination of these questions of fact by the Trial Judge who sat as trier of the facts. Plaintiffs raise serious questions as to the appropriate apportionment as against defendants who are not parties to the action, one of whom had not settled with defendant, and request that we delete those portions of the judgment apportioning damages in the amount of one third. However, as plaintiffs did not appeal from the interlocutory judgment, we do not now pass on plaintiffs’ request. Concur—Kupferman, J. P., Silverman and Ross, JJ.