Opinion
July 18, 1966
Appeal from an order of the Supreme Court, Albany County, denying motions to dismiss the respondents' complaints for failure to prove causes of action (CPLR 4401) or alternatively to direct judgments in favor of the appellants (CPLR 3212). The appeal from so much of the order as denied the motion to dismiss pursuant to CPLR 4401 must be dismissed in the instant case since no appeal lies therefrom under CPLR 5701 ( Covell v. H.R.H. Constr. Corp., 24 A.D.2d 566, affd. 17 N.Y.2d 709). Furthermore, since there must in any event be a new trial as to the other appellants, there should, in the interests of justice, be a new trial as to appellant Fox also, albeit on the present record there is doubt as to any liability on her part (see St. Denis v. Skidmore, 14 A.D.2d 981, affd. 12 N.Y.2d 901; 4 N.Y. Jur., Automobiles, § 406; cf. Paone v. Magee, 18 A.D.2d 728; Burns v. Wheeler, 17 A.D.2d 173). Appeal from that part of the order which denies appellants' motion to dismiss the complaints pursuant to CPLR 4401 dismissed; and that part of the order which denies summary judgment affirmed, without costs. Gibson, P.J., Herlihy, Aulisi and Staley, Jr., JJ., concur.