Davis v. Barnum

In an action to recover damages for personal injuries, etc., (1) plaintiffs appeal from an order of the Supreme Court, Nassau County (Kelly, J.), dated July 19, 1984, which granted defendants’ Steven and Lee Sokolow, motion for summary judgment dismissing the action as to them, and (2) defendant Valerie Barnum cross-appeals, as limited by her brief, from so much of the same order as granted the Sokolows’ motion without sua sponte granting summary judgment in her favor. Order affirmed, with costs to respondents. Special Term properly granted the Sokolows’ motion for summary judgment since plaintiffs have failed to establish a genuine issue of fact with respect to whether the Sokolows’ alleged negligence was a proximate cause of the accident in question (see, Lomnitz v Town of Woodbury, 81 AD2d 828). It was not error for Special Term to deny summary judgment sua sponte to defendant Barnum since issues of fact exist as to her. Whether plaintiff Elizabeth Davis and/or defendant Barnum were solely or partially at fault cannot be determined from the record as it now stands. Mangano, J. P., Rubin, Lawrence and Fiber, JJ., concur.