Lo Presti v. New York Telephone Co. , 23 A.D.2d 870 ( 1965 )

In an action to recover damages for personal injury, etc., the defendants appeal as follows from two orders of the Supreme Court, Kings County: (1) from so much of an order entered November 6, 1964, as granted summary judgment to plaintiff Anna Lo Prestí, severed her action and directed an assessment of her damages; and (2) from so much of an order, entered January 13, 1965 upon reargument, as adhered to the court’s original decision. Order of January 13, 1965, insofar as appealed from, reversed, without costs, and plaintiffs’ motion for summary judgment denied in toto. Appeal from order of November 6, 1964 dismissed, without costs. In our opinion, triable issues of fact are presented which preclude the granting of summary judgment (of. Shea v. Judson, 283 N. Y. 393; Esmark v. Ta/ndler, 204 App. Div. 554; Moore v. Washburn, 14 A D 2d 474). Ughetta, Acting P. J., Christ, Brennan, Hopkins and Benjamin, JJ., concur.