Opinion
April 8, 1960
Morris Alfred Vogel for plaintiffs.
Casper B. Ughetta for defendants.
Motion for summary judgment in an action for personal injuries denied. Issues of fact exist which cannot be resolved without a trial.
On a motion for summary judgment the testimony of the nonmoving party is accepted as true. Here, the defendant claims in his affidavit that the plaintiff Grayce C. Tyree brought her vehicle to a sudden and abrupt stop before reaching the intersection of Peninsula Boulevard and Henry Street in Hempstead, N.Y., on October 18, 1958 about 6:00 P.M., and that he applied his brakes, but a collision with the rear of the plaintiffs' car resulted. In the excerpt of the examination before trial, quoted in the affidavit of plaintiffs' attorney, the defendant admits the collision, and says that he was proceeding about 5 to 10 miles per hour and that immediately prior to the accident the plaintiffs' vehicle was stopped.
The mere fact that the plaintiffs' vehicle was motionless at a traffic light when it was struck in the rear does not compel as a matter of law the inference that the defendant was negligently responsible for the accident ( Schwartzberg v. Norotsky, 20 Misc.2d 638; Bondar v. Ar Jay Paint Co., 20 Misc.2d 643; Elian v. Teck, 9 A.D.2d 914; Santomieri v. Oliveri, 10 A.D.2d 636; Pauley v. F. J. Trucking Co., 10 A.D.2d 629). Nor may the defendant be charged with negligence as a matter of law for following the plaintiffs' vehicle at a distance of 15 feet when his car was traveling 5 to 10 miles per hour, particularly when a stop at the time and place referred to by the defendant was not to be expected ( Zwilling v. Harrison, 269 N.Y. 461).