Opinion
April 30, 1962
In a negligence action arising out of a rear-end automobile collision, the defendant Herman Springhorn appeals from an order of the Supreme Court, Ulster County, dated October 6, 1961, and entered in Dutchess County, November 9, 1961, which granted plaintiffs' motion for summary judgment and directed an assessment of damages, pursuant to rule 113 of the Rules of Civil Practice. Order reversed, with $10 costs and disbursements, and motion for summary judgment denied. In our opinion, the record presents issues of fact which should be resolved upon a trial. Ughetta, Acting P.J., Kleinfeld, Rabin and Hopkins, JJ., concur; Hill, J., dissents and votes to affirm the order granting summary judgment, on the ground that the explanation in defendant's affidavit submitted in opposition to the motion, is incredible as a matter of law.