Opinion
March 28, 1966
Appeal from an order of the Supreme Court, Sullivan County, granting respondent's motion for partial summary judgment (CPLR 3212). Respondent's complaint alleges that a tractor-trailer owned by appellant McBride Transportation, Inc., was negligently operated by its employee so that it struck respondent's building causing $743 in damages. Appellants' answer contains a general denial. Special Term concluded on the basis of the pleadings and affidavits presented on the motion that there were no triable issues except on the question of damages and, therefore, granted summary judgment for respondent on the question of liability. Summary judgment in negligence cases should be granted only in rare instances and this is so "Even assuming that there is no dispute as to what occurred" (Weinstein-Korn-Miller, par. 3212.03, p. 32.123; e.g., Cooper v. Greyhound Bus Corp., 13 A.D.2d 173, 174). Here, however, looking, as we must, at the record most favorably to the factual showing of the parties asserting a right to trial we find factual issues presented by appellant Sheeley's answering affidavit as to whether the vehicle hit the building where respondent claims the damage occurred and, if it in fact did so, whether such contact was due to negligence on the part of the operator. Thus there are present disputed issues of fact wholly apart from the issues of damages, and accordingly the order appealed from must be reversed. Order reversed, on the law and the facts, with costs. Gibson, P.J., Taylor, Aulisi and Hamm, JJ., concur.