Opinion
March 5, 1962
In a negligence action to recover damages for personal injuries, the defendant Hawley appeals from an order of the Supreme Court, Kings County, dated November 10, 1960, which granted plaintiffs' motion, made pursuant to rule 113 of the Rules of Civil Practice, to strike out the said defendant's answer and for summary judgment against him; directed an assessment of plaintiffs' damages; and severed the action against the remaining defendants. Order reversed, without costs, and plaintiffs' motion for summary judgment against defendant Hawley denied. Under all the circumstances disclosed by this record, it has not been established that there is no triable issue of fact as to whether the said defendant was negligent. Ughetta, Acting P.J., Christ, Brennan, Hill and Rabin, JJ., concur.