Opinion
November 27, 1967
Appeal by plaintiffs Cregar and Mone, as limited by their joint brief, from so much of a judgment of the Supreme Court, Kings County, dated January 11, 1966, as is against them, upon the trial court's dismissal of their complaints as to defendant Rosenthal and upon the jury's verdict as to defendants McDonald. Judgment reversed insofar as appealed from, on the law and the facts, and new trial granted as to said plaintiffs' respective actions against said defendants, with costs to abide the event, and said actions are accordingly severed from the action by Rosenthal as plaintiff. In our opinion, viewing the proof of plaintiffs Cregar and Mone as against defendant Rosenthal in the light most favorable to said plaintiffs and giving them the benefit of the reasonable inferences to be drawn from the proof, as we must, the trial court erred in dismissing their complaints as against said defendant (see Wearever Upholstery Furniture Corp. v. Home Ins. Co., 286 App. Div. 93, 95). The testimony of defendant Gerard McDonald, Jr., that his vehicle was immobile for 10 or 15 seconds prior to the collision was sufficient to present a question of fact for the jury as to defendant Rosenthal's negligence. In view of the reversal as to defendant Rosenthal, in the interests of justice there should be a new trial as to defendants McDonald (see Robinson v. Terminal Frgt. Transp. Co., 2 A.D.2d 510). Beldock, P.J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.