Opinion
October 16, 1961
In an action to recover damages for personal injuries by reason of defendant's negligence in the operation of his motor vehicle, the defendant appeals from an order of the Supreme Court, Queens County, dated December 22, 1960, granting plaintiff's motion for summary judgment and directing an assessment of damages, pursuant to rule 113 of the Rules of Civil Practice. Order reversed, with $10 costs and disbursements, and motion denied. Upon the facts set forth in the record, issues exist as to whether plaintiff suffered injuries as a result of defendant's automobile striking the rear of plaintiff's automobile. Further, it does not appear conclusively that defendant failed to use such reasonable precautions to avoid the accident as would ordinarily be used by careful, prudent persons under like circumstances (cf. Gerard v. Inglese, 11 A.D.2d 381). Nolan, P.J., Ughetta, Pette and Brennan, JJ., concur; Christ, J., dissents and votes to affirm.