Opinion
July 5, 1966
In consolidated actions to recover damages for personal injuries (Action No. 1) and for wrongful death and conscious pain and suffering (Action No. 2), the plaintiff in Action No. 2 appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Nassau County, entered May 25, 1964, upon the court's dismissal of the complaint as against the defendant Brown at the close of the entire case. Judgment insofar as appealed from reversed on the law and a new trial granted as between Penn and Brown, with costs to appellant to abide the event. No questions of fact have been considered. In our opinion, appellant established a prima facie case against the defendant Brown (cf. Noseworthy v. City of New York, 298 N.Y. 76, 80; Kraus v. Birnbaum, 200 N.Y. 130, 133; Decedent Estate Law, § 131), and her complaint should not have been dismissed as against the defendant Brown. Brennan, Acting P.J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.