Sporbert v. Lenox

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated May 27, 1997, as denied their motion for summary judgment on the issue of liability, and the defendants Alex Kelly and Richard Kelly cross-appeal, as limited by their brief, from so much of the same order as denied their cross motion for summary judgment dismissing the complaint insofar as asserted against them. Ordered that the order is affirmed, without costs or disbursements. Questions of fact exist as to the comparative fault of the injured plaintiff Michael Sporbert which warranted the denial of the plaintiffs’ motion for summary judgment on the issue of liability (see, MacDowall v Koehring Basic Constr. Equip., 49 NY2d 824; Massie v Commercial Envelope Mfg. Co., 245 AD2d 551; Gibson v American Export Isbrandtsen Lines, 125 AD2d 65). Further, the Supreme Court properly denied the cross motion of the defendants Alex Kelly and Richard Kelly for summary judgment, as questions of fact exist as to the infant Alex Kelly’s degree of involvement in the subject prank (see, Vanacore v Teigue, 243 AD2d 706). Mangano, P. J., Thompson, Santucci and Altman, JJ., concur.