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DI SABATO v. SOFFES

9 A.D.2d 297 (1959)

Marion Di Sabato, an Infant, by Marco Di Sabato, Her Guardian ad Litem, et al., Appellants, v. Robert Soffes et al., Respondents

Appellate Division of the Supreme Court of the State of New York, First Department.

November 24, 1959.

Attorney(s) appearing for the Case

Louis Jay Brecher for appellants.

A. Harold Frost of counsel (Emile Z. Berman with him on the brief; Russell B. Greaves, attorney), for respondents.

RABIN and McNALLY, JJ., concur with M. M. FRANK, J.; BREITEL, J., dissents and votes to affirm in opinion, in which BOTEIN, P. J., concurs.

M. M. FRANK, J.

In this action for personal injuries, the plaintiffs appeal from an order denying their motion, made pursuant to rule 113 of the Rules of Civil Practice, for summary judgment striking out the defendants' answer and directing an assessment of damages.

At the outset it should be stated that there is no claim that the plaintiffs were contributorily...

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