Opinion
December 1, 1969
In this action to recover damages for wrongful death and conscious pain and suffering, upon the trial of which the jury could not agree upon a verdict, the appeal, as limited by the order of this court dated April 7, 1969 which dismissed a portion of the appeal as originally taken, is from so much of an order of the Supreme Court, Queens County, dated March 19, 1969, as denied defendant Orkin's posttrial motion for summary judgment. Order affirmed insofar as appealed from, with costs to plaintiff against said defendant to abide the event of the new trial. In our opinion triable issues exist as to the negligence of defendant Orkin and as to proximate causation, which can be resolved only upon a trial. Christ, Acting P.J., Brennan, Rabin, Benjamin and Munder, JJ., concur.