Robin Foley et al., Respondents-Appellants, v. Paul Kjarbo et al., Appellants-Respondents

Robin Foley et al., Respondents-Appellants, v Paul Kjarbo et al., Appellants-Respondents. [711 NYS2d 781] [MAJORITY] —In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), entered June 23, 1999, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Paul Kjarbo, and the plaintiffs cross-appeal from so much of the same order as granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Robert Kjarbo, s/h/a “John” Kjarbo. Ordered that the appeal by the defendant Robert Kjarbo is dismissed, without costs or disbursements, as he is not aggrieved by the portion of the order appealed from; and it is further, Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements. Contrary to the defendants’ contention, the infant plaintiffs conduct did not constitute the sole proximate cause of her own injuries (cf., Kriz v Schum, 75 NY2d 25, 34). Accordingly, the Supreme Court properly denied summary judgment to the defendant Paul Kjarbo. However, the Supreme Court properly determined that the defendant Robert Kjarbo was entitled to summary judgment dismissing the complaint insofar as asserted against him (see, CPLR 3212 [b]). Sullivan, J. P., McGinity, H. Miller and Smith, JJ., concur.