Opinion
January 14, 1971
Order, Supreme Court, Bronx County, entered on May 13, 1970, granting summary judgment to the plaintiff, unanimously reversed on the law, without costs and without disbursements, and the motion denied. In the exercise of discretion and in the interest of justice, plaintiff shall be granted a preference upon the filing of a proper note of issue and the payment of the necessary fees. ( Matter of Smith [ MVAIC], 34 A.D.2d 629; Rasner v. Golden Skillet of N.Y., 33 A.D.2d 679; Sullivan v. Ganios, 31 A.D.2d 527; CPLR 3212, subd. [g]; 4 Weinstein-Korn-Miller, N Y Civ. Prac., pars. 3211.42, 3212.12.) While the plaintiff makes out a very strong case toward the granting of summary judgment, there are yet triable issues of fact. Whether plaintiff had an opportunity, if any, to avoid the accident is a factual issue.
Concur — Stevens, P.J., Capozzoli, Nunez and McNally, JJ.