Connell v. Buitekant

—■ Order, entered on September 18, 1962, granting plaintiff summary judgment pursuant to rule 113 of the Rules of Civil Practice, in an action to recover damages for personal injuries sustained in a rear-end automobile collision, unanimously reversed, on the law, with $20 costs and disbursements to defendant-appellant, and the motion denied, with $10 costs. Issues of fact are raised as to whether defendant was negligent or whether the collision was unavoidable. That defendant did not personally submit an affidavit in opposition to the motion does not require the granting of plaintiff’s motion where plaintiff’s papers in quoting from the examination before trial of defendant indicate the existence of a triable issue. (See Ortiz v. Knighton, 14 A D 2d 679.) This ease represents another illustration of the wisdom of the cautionary observation in Schneider v. Miecznikowski (16 A D 2d 177) that summary judgment “ may not properly be invoked in automobile accident cases, except in rare instances.” Concur — Botein, P. J., Valente, McNally, Stevens and Steuer, JJ.