Opinion
May 11, 1970
In a negligence action to recover damages for personal injuries of plaintiff Joseph C. Feola and for loss of consortium by his wife, plaintiff Clara Feola, the cross appeals are from an order of the Supreme Court, Kings County, dated October 15, 1969, as follows: defendant appeals, as limited by his brief, from so much of the order as, on plaintiffs' motion for summary judgment, granted such relief to Joseph C. Feola; and plaintiff Clara Feola appeals from so much of the order as denied her such relief. Order modified, on the law, by (1) striking from the first decretal paragraph thereof the word "granted" and substituting therefor the word "denied" and (2) striking out the second, third and fifth decretal paragraphs thereof. As so modified, order affirmed, without costs. In our opinion, questions of fact are presented which should be resolved after trial in the plaintiff husband's cause of action for personal injuries (see Raolaslovic v. New York Cent. R.R. Co., 245 N.Y. 91; Nieves v. Manhattan Bronx Surface Tr. Operating Auth., 31 A.D.2d 359, 360-361), as well as in the plaintiff wife's derivative cause of action for loss of consortium (see Millington v. Southeastern Elevator Co., 22 N.Y.2d 498; Terranova v. Emil, 20 N.Y.2d 493; De France v. Oestrike, 8 A.D.2d 735). Christ, P.J., Hopkins, Brennan and Benjamin, JJ., concur. (Beldock, P.J., deceased.)