Reale v. Pooton

In an action to recover damages for personal injuries and loss of services, the defendant appeals from an order of the County Court, Westchester County, entered April 2-9, 1960, which granted plaintiffs’ motion for summary judgment and for an assessment of damages. It appears that the defendant fell upon plaintiff Kathryn Reale while the latter was seated at a table. Order reversed, with $10 costs and disbursements, and motion denied. Notwithstanding the fact that no affidavit by the defendant personally was submitted in opposition to the motion, the record presents issues for a trier of the facts to determine as to: (1) whether under all the circumstances defendant’s conduct constituted negligence, and (2) whether under all the circumstances there was contributory negligence on- the part of the injured person. Nolan, P. J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.