Opinion
February 4, 1963
In an action to recover damages for personal injury, loss of services and medical expenses, plaintiffs appeal from so much of an order of the Supreme Court, Westchester County, dated January 17, 1961, made upon reargument, as adhered to the court's original decision and denied their motion for summary judgment (Rules Civ. Prac., rule 113). Order, insofar as appealed from, reversed, with $10 costs and disbursements, motion granted, and action remitted to the Supreme Court, Westchester County, for an assessment of the damages and for the entry of the appropriate summary judgment. In our opinion, defendant Arthur Goldsmith's undisputed conduct in operating the automobile with his eyes off the road while attempting to place an article in the glove compartment, and thereby losing control of the automobile, renders inescapable the inference of his negligence, in the absence of an explanation consistent with reasonable care ( Gerard v. Inglese, 11 A.D.2d 381; Appel v. Root, 18 A.D.2d 686). Beldock, P.J., Brennan, Hill and Rabin, JJ., concur; Ughetta, J., concurs, adhering, however, to the views expressed in the dissenting memorandum in Appel v. Root ( 18 A.D.2d 686).