Opinion
November 20, 1961
In a negligence action to recover damages for the wrongful death of plaintiff's intestate, the parties cross appeal as follows from an order of the Supreme Court, Nassau County, dated April 6, 1961: (1) Defendants appeal from so much of said order as granted plaintiff's motion for summary judgment under rule 113 of the Rules of Civil Practice and directed that the action be placed on the calendar for an assessment of the damages. (2) Plaintiff appeals from so much of said order which, in effect, denied her motion for alternative relief, to wit: a special preference in trial under rule 151 of the Rules of Civil Practice or under a prior order which had granted a general preference in trial under rule 4A of the Nassau County Supreme Court Rules. On defendants' appeal: Order, insofar as appealed from, reversed, without costs, and plaintiff's motion for summary judgment denied. The record presents issues of fact which may not be resolved on a motion for summary judgment. On plaintiff's appeal: Order, insofar as appealed from, affirmed, without costs. We agree with the Justice at Special Term that the facts disclosed by this record do not warrant the granting of the special preference in trial sought by the plaintiff. Nolan, P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.