Martin v. Gallagher Truck Center, Inc. , 665 N.Y.S.2d 579 ( 1997 )

—In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Orange County (Bellantoni, J.), entered October 22, 1996, which, upon an order of the same court dated September 25, 1996, granting the defendant’s motion for summary judgment, dismissed the complaint. The plaintiffs’ notice of appeal from the order dated September 25, 1996, is deemed a premature notice of appeal from the judgment (see, CPLR 5520 [c]).

Ordered that the judgment is reversed, on the law, with costs, the order dated September 25, 1996, is vacated, the motion for summary judgment is denied, and the plaintiffs’ complaint is reinstated.

Viewing the facts in the light most favorable to the plaintiffs, we find that questions of fact exist as to whether the defendant’s service manager did, in fact, instruct the plaintiff Jacqueline Martin on how to disengage her vehicle’s emergency brake in the manner which allegedly caused her injuries, and if the defendant thereby assumed a duty of care to her (see, e.g., Cohen v Heritage Motor Tours, 205 AD2d 105; Gordon v Muchnick, 180 AD2d 715). O’Brien, J. P., Thompson, Friedmann and Goldstein, JJ., concur.