CHARLES HOLIDAY, res-ap, v. NATHAN POFFENBARGER def, MU CHAPTER OF SIGMA PI FRATERNITY INTERNATIONAL, APPELLANT-res — (INDEX NO. 38046/06)In an action, inter alia, to recover damages pursuant to General Obligations Law §11-100, (1) the defendant Mu Chapter of Sigma Pi Fraternity International appeals from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated August 22, 2011, as denied that branch of the motion of the defendants Mu Chapter of Sigma Pi Fraternity of United States, Inc., and Mu Chapter of Sigma Pi Fraternity International which was for summary judgment dismissing the cause of action to recover damages pursuant to General Obligations Law §11-100 insofar as asserted against the defendant Mu Chapter of Sigma Pi Fraternity International, and the plaintiff cross-appeals, as limited by his notice of cross appeal and brief, from so much of the same order as granted that branch of the motion of the defendants Mu Chapter of Sigma Pi Fraternity of United States, Inc., and Mu Chapter of Sigma Pi Fraternity International which was for summary judgment dismissing the cause of action alleging negligence insofar as asserted against the defendant Mu Chapter of Sigma Pi Fraternity International, (2) the defendant Mu Chapter of Sigma Pi Fraternity International appeals, as limited by its brief, from so much of an interlocutory judgment of the same court (Silber, J.), dated November 28, 2011, as, upon a jury verdict on the issue of liability finding it 35 percent at fault in the happening of the incident underlying this action, is in favor of the plaintiff and against it on the issue of liability on the cause of action to recover damages pursuant to General Obligations Law §11-100 insofar as asserted against it, and (3) the defendant Mu Chapter of Sigma Pi Fraternity International appeals from so much of an order of the same court (Silber, J.), dated January 24, 2012, as denied its motion pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability, which had been made at the close of evidence, and that branch of its separate motion which was pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability as contrary to the weight of the evidence and for a new trial on the issue of liability on the cause of action to recover damages pursuant to General Obligations Law §11-100 insofar as asserted against it.
ORDERED that the order dated August 22, 2011, is reversed insofar as appealed from, on the law, that branch of the motion of the defendants Mu Chapter of Sigma Pi Fraternity of United States, Inc., and Mu Chapter of Sigma Pi Fraternity International which was for summary judgment dismissing the cause of action to recover damages pursuant to General Obligations Law §11-100 insofar as asserted against the defendant Mu Chapter of Sigma Pi Fraternity International is granted, and the interlocutory judgment and the order dated January 24, 2012, are vacated; and it is further,
