Opinion
June 11, 1962
In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Kings County, dated March 9, 1962, which granted plaintiff's motion, pursuant to rule 113 of the Rules of Civil Practice, for summary judgment, and directed an assessment of damages. Order reversed, with $10 costs and disbursements, and motion for summary judgment denied. The plaintiff was a passenger in defendant's automobile, driven by defendant's son, who was killed when the automobile crashed into a parked vehicle. There were no other passengers in the car. It would appear that plaintiff is the only person who has knowledge as to the manner in which the accident occurred. Summary judgment should not be granted if the facts are exclusively within the knowledge of the moving party ( De France v. Oestrike, 8 A.D.2d 735). Beldock, P.J., Ughetta, Kleinfeld, Brennan and Hill, JJ., concur.