Joseph J. Meier, an Infant, by His Father and Natural Guardian, James D. Meier, Plaintiff, and James D. Meier, as Administrator of the Estate of Lillian Meier, Deceased, Appellant, v. Town of Clinton et al., Defendants, and Elizabeth A. Skeel et al., Respondents

Joseph J. Meier, an Infant, by His Father and Natural Guardian, James D. Meier, Plaintiff, and James D. Meier, as Administrator of the Estate of Lillian Meier, Deceased, Appellant, v Town of Clinton et al., Defendants, and Elizabeth A. Skeel et al., Respondents. [MAJORITY] In an action, inter alia, to recover damages for wrongful death, the plaintiff James D. Meier appeals (1) from so much of an order of the Supreme Court, Dutchess County (Jiudice, J.), entered October 20, 1988, as granted the motion by the defendants Elizabeth Skeel and Richard Skeel for summary judgment, and (2) from so much of an order of the same court, entered January 19, 1989, as upon granting renewal and reargument, adhered to the original determination. Ordered that the appeal from the order entered October 20, 1988, is dismissed, as that order was superseded by the order dated January 19, 1989, made upon renewal and reargument; and it is further, Ordered that the order entered January 19, 1989 is reversed insofar as appealed from, on the law, the order entered October 20, 1988, is vacated, and the motion for summary judgment is denied; and it is further, Ordered that the appellant is awarded one bill of costs. We find that under the circumstances of this case, summary judgment should have been denied, since the record reveals the existence of issues of fact. Kunzeman, J. P., Rubin, Eiber and Miller, JJ., concur.