
    Susan Schiffrin, Appellant, v Murray Meranchik, Respondent. (And a Third-Party Action.)
   — In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, entered January 29, 1975, against her and in favor of defendant upon the trial court’s dismissal of the complaint on the ground that plaintiff had not established jurisdiction over the person of defendant, at a jury trial on the issue of liability only. Judgment reversed, on the law, and new trial granted as to all parties, with costs to abide the event. The appeal presented no questions of fact. The trial court committed reversible error when it held that plaintiff was bound by defendant’s denial, during an examination before trial, of personal service, because that denial was read into the record by plaintiffs attorney. Plaintiff should have been accorded the opportunity to refute defendant’s denial and to have the issue of fact raised by defendant’s affirmative defense of lack of personal jurisdiction determined by the jury (CPLR 3117, subd [d]; Spampinato v A. B. C. Cons. Corp., 35 NY2d 283). Martuscello, Acting P. J., Christ, Munder and Shapiro, JJ., concur; Cohalan, J., dissents and votes to affirm.  