Opinion
December 7, 1999
Order, Supreme Court, Bronx County (Howard Silver, J.), entered April 5, 1999, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Everett N. Nimetz, for plaintiff-respondent.
Carol R. Finocchio, for defendants-appellants.
SULLIVAN, J.P., ROSENBERGER, TOM, MAZZARELLI, WALLACH, JJ.
Defendant motorist's deposition testimony to the effect that, although he was driving on a straight and level roadway at a safe speed, he never saw plaintiff's decedent crossing the street, itself raises an issue as to whether defendant motorist was driving with due care at the time of the accident in question (see, Weigand v. United Traction Co., 221 N.Y. 39, 42). Defendants' argument that the decedent's reckless conduct constituted an intervening and superseding cause of the accident cannot be determined on this record as a matter of law. The extent, if any, to which the decedent was himself responsible for his demise presents a factual question for the jury, and not one susceptible of determination as a matter of law by the court (see, Egan v. P.J. Constr. Corp., 262 A.D.2d 80, 691 N.Y.S.2d 495).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.