Albertson v. Gadsen , 27 A.D.2d 554 ( 1966 )

Judgment of the Supreme Court, Dutchess County, dated October 4, 1965, reversed, on the law, and new trial granted, with costs to abide the event. No questions of fact have been considered. In our opinion, plaintiffs established a prima facie case which should have been submitted to the jury. Tsitsera v. Hudson Tr. Corp. (14 N Y 2d 855), upon which the learned Trial Judge relied in dismissing the complaints, is factually distinguishable. In Tsitsera the facts supported the determination that, as a matter of law, the defendants’ acts were not the proximate cause of the injuries sustained by the plaintiffs therein. At bar the facts were not such as to permit the trial court to hold that, as a matter of law, defendant’s acts were not the proximate cause of plaintiffs’ injuries and property damage. At most, the plaintiff driver’s acts were concurrent and not intervening causes (see Saugerties Bank v. Delaware & Hudson Co., 236 N. Y. 425; Di Sabato v. Soffes, 9 A D 2d 297; 2 Restatement, Torts [Second], § 439). Ughetta, Acting P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.