Opinion
November 6, 1961
In an action to recover damages for injuries to person and property, claimed to have been sustained by reason of defendants' negligence in the operation of a motor truck, defendants appeal from an order of the Supreme Court, Queens County, dated May 13, 1960, granting plaintiffs' motion for summary judgment pursuant to rule 113 of the Rules of Civil Practice. The accident occurred when a metal roller on the truck became dislodged and struck the windshield of the automobile being operated by the female plaintiff as the two vehicles, moving in opposite directions, passed each other on a public street. Order reversed, with $10 costs and disbursements, and motion denied. The record presents issues of fact as to defendants' negligence, which should be resolved upon a trial (cf. George Foltis, Inc., v. City of New York, 287 N.Y. 108, 122; Salomone v. Yellow Taxi Corp., 242 N.Y. 251, 259; Nixon v. New York Cent. R.R. Co., 10 A.D.2d 870). Nolan, P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.