Diaram Persaud, Respondent, v. Shark Patrol, Inc., et al., Appellants

Diaram Persaud, Respondent, v Shark Patrol, Inc., et al., Appellants. [699 NYS2d 282] [MAJORITY] —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. 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 NY 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 A. J. Constr. Corp., 262 AD2d 80). Concur — Sullivan, J. P., Rosenberger, Tom, Mazzarelli and Wallach, JJ.