27 A.D.2d 786 | N.Y. App. Div. | 1967
Lead Opinion
Defendant Denton appeals from an order which denied his motion for summary judgment dismissing as to him the complaint in a negligence action arising out of a collision between automobiles operated by him and by defendant Pugliese in opposite directions on a two-lane highway. Plaintiff was a passenger in the Pugliese ear. In his moving affidavit, appellant said that he was traveling in his own lane when the Pugliese car crossed into it; that appellant applied his brakes and pulled as far to his right as possible, further progress in that direction being obstructed by wooden traffic barriers in place at that point; and that the collision occurred in appellant’s lane when three-fourths of the Pugliese car was in appellant’s lane. Appellant’s version of the accident is corroborated by a photograph and more significantly by defendant Pugliese’s testimony upon his examination before trial, which was quoted verbatim in the moving affidavit and again in the .answering affidavit. This was in no respect questioned or impeached and is properly before us. Mr. Pugliese there testified
Dissenting Opinion
(dissenting). The plaintiff was a passenger in the automobile operated by the codefendant Pugliese which was in collision with the appellant Denton’s automobile. The motion was based on an admission by Pugliese that at the time of the accident Pugliese had allowed his automobile to come into the opposite lane of traffic in which appellant was traveling. It appears that' under the weather and road conditions, the speed of the automobiles and the point of contact, there were issues of fact for a jury as to the negligence of both defendants. On the trial the factual issue may well be decided in favor of the appellant but on the present record it is our opinion that a dismissal is not warranted as a matter of law. Excerpts from the examination before trial are set forth in the affidavits, but the complete record of such examination is not before this court. The order should be affirmed, with costs.