Opinion
February 13, 1973
In a negligence action to recover damages for personal injuries and medical expenses, plaintiffs appeal from a judgment of the Supreme Court, Kings County, entered December 10, 1971, in favor of defendant, upon the trial court's dismissal of the complaint at the end of plaintiffs' case upon a jury trial of the issues of liability. Judgment reversed, on the law, and new trial granted, with costs to abide the event. No questions of fact were presented by this appeal. In our opinion there were questions of fact which should have been submitted to the jury for determination. Gulotta, Christ and Benjamin, JJ., concur; Martuscello, Acting P.J., and Shapiro, J., dissent and vote to affirm on the authority of Cardoza v. Sheiner ( 33 A.D.2d 663, affd. 26 N.Y.2d 897); Schnall v. City of New York ( 1 A.D.2d 689, affd. 2 N.Y.2d 959); Davis v. City of New York ( 270 App. Div. 104 7, affd. 296 N.Y. 869).