Costa v. Schnabel — 209 A.D.2d 372

Majority

p. 372

Marilyn S. Costa et al., Respondents, v Mark Schnabel et al., Defendants, and L.K. Comstock & Co., Inc., Appellant.

[619 NYS2d 594]

—In an action to recover damages for personal injuries, the defendant L.K. Comstock & Co., Inc., appeals from so much of an order of the Supreme Court, Queens County (Price, J.), dated December 23, 1992, as denied that

p. 373

branch of its motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiffs raised triable issues of fact as to whether the appellant was negligent in its prior repair of a traffic control device and as to whether the defect in the device was the proximate cause of the accident which gave rise to the plaintiffs’ claims (see, CPLR 3212 [b]). Thompson, J. P., Miller, O’Brien, Santucci and Joy, JJ., concur.