Opinion
November 7, 1960
In an action to recover damages for personal injuries, defendants appeal from an order of the Supreme Court, Queens County, dated June 2, 1960, which grants plaintiffs' motion for reargument of their motion for summary judgment striking out defendants' answer, previously denied, and which upon reargument grants plaintiffs' said motion for summary judgment pursuant to rule 113 of the Rules of Civil Practice. Order modified: (1) by striking out the second, third, fourth and fifth decretal paragraphs which grant plaintiffs' motion for summary judgment, strike out defendants' answer, and direct an assessment of the damages and the entry of judgment based thereon; and (2) by substituting therefor a provision denying plaintiffs' motion for summary judgment. As so modified, order affirmed, with $10 costs and disbursements to defendants. The papers present a triable issue of fact as to negligence. There is no need now to pass on defendants' other contentions. Beldock, Acting P.J., Ughetta, Kleinfeld, Pette and Brennan, JJ., concur.