Opinion
February 14, 1961
In an action to recover damages for personal injuries alleged to have been caused by the negligent operation of a motor vehicle, defendants appeal from an order of the Supreme Court, Queens County, dated September 27, 1960, granting plaintiff's motion for summary judgment pursuant to rule 113 of the Rules of Civil Practice. Order reversed, with $10 costs and disbursements, and motion denied. In our opinion, there are issues of fact which should be decided after trial and not summarily on motion (cf. Galbraith v. Busch, 267 N.Y. 230; Nelson v. Nygren, 259 N.Y. 71; Vignola v. Britts, 11 A.D.2d 801; Donahue v. Romahn, 10 A.D.2d 637). Nolan, P.J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.