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ZELLMAN v. METROPOLITAN

83 A.D.2d 144 (1981)

Sandra Zellman, Individually and as Executrix of Robert Zellman, Deceased, Appellant, v. Metropolitan Transportation Authority et al., Respondents

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

November 9, 1981

Attorney(s) appearing for the Case

Joseph F. Carlino (Tedone & Tedone [Matthew A. Tedone and John F. Cordes] of counsel), for appellant.

Kelly, Rode, Kelly & Burke (John D. Kelly and Shawn P. Kelly of counsel), for respondents.

LAZER, J. P., MANGANO and GIBBONS, JJ., concur with COHALAN, J.; GULOTTA, J., concurs in the result, with an opinion.

COHALAN, J.

The plaintiff in this wrongful death and conscious pain and suffering action appeals from a judgment which dismissed the complaint at the close of plaintiff's case and directed a jury verdict for the defendants. The dismissal was based on the contributory negligence of the deceased (plaintiff's testator) as a matter of law.

The judgment should be reversed and the case remitted to the Supreme...

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