Opinion
CA 03-02088.
Decided June 14, 2004.
Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered January 24, 2003. The order, insofar as appealed from, denied defendant's motion for leave to reargue and granted plaintiffs' cross motion for summary judgment in part.
KENNEY, SHELTON, LIPTAK NOWAK, LLP, BUFFALO (WENDY A. SCOTT OF COUNSEL), FOR DEFENDANT-APPELLANT.
MUSCATO, DI MILLO VONA, LLP, LOCKPORT (GEORGE V.C. MUSCATO OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: WISNER, J.P., HURLBUTT, KEHOE, MARTOCHE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal from the order insofar as it denied leave to reargue be and the same hereby is unanimously dismissed and the order is modified on the law by granting that part of plaintiffs' cross motion seeking partial summary judgment determining that plaintiff Melinda Hillman was not comparatively negligent and granting partial summary judgment to plaintiffs determining that there are no issues of fact with respect to any assumption of risk on the part of plaintiff Melinda Hillman or a failure by her to mitigate her damages and as modified the order is affirmed with costs to plaintiffs.
Same Memorandum as in Hillman v. Eick ([appeal No. 1] 8 A.D.3d 898 [June 14, 2004]).