| Gideon v Flatlands Beverage Distribs., Inc. |
| 2009 NY Slip Op 01196 [59 AD3d 596] |
| February 17, 2009 |
| Appellate Division, Second Department |
| Yoly Gideon et al., Appellants, v Flatlands BeverageDistributors, Inc., et al., Respondents. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (Michael L.Boulhosa and Debra A. Adler of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Kings County (Kramer, J.), dated February 19, 2008, which denied theirmotion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
The plaintiffs failed to demonstrate their entitlement to judgment as a matter of law on theissue of the injured plaintiff's lack of comparative negligence (see Thoma v Ronai, 82NY2d 736, 737 [1993], affg 189 AD2d 635, 635-636 [1993]; Cator v Filipe, 47 AD3d 664[2008]; compare Hoey v City of NewYork, 28 AD3d 717 [2006]).
Motion by the respondents on an appeal from an order of the Supreme Court, Kings County,dated February 19, 2008, inter alia, for this Court to take judicial notice of an order of the samecourt dated May 5, 2008. By decision and order on motion of this Court dated September 10,2008, that branch of the motion which was for this Court to take judicial notice of the orderdated May 5, 2008, was held in abeyance and referred to the Justices hearing the appeal fordetermination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeal, it is
Ordered that the branch of the motion which was for this Court to take judicial notice of theorder dated May 5, 2008, is denied as academic in light of the determination of the appeal fromthe order dated February 19, 2008. Skelos, J.P., Dillon, Angiolillo and Eng, JJ., concur.