Ortiz v. Knighton

| N.Y. App. Div. | Sep 28, 1961

Plaintiff’s vehicle was struck in the rear by defendant’s vehicle and no issue is raised on this motion as to the course and speed of the vehicles, or the surrounding circumstances. Nevertheless, an issue of fact exists whether defendant was negligent, that is, whether what defendant eoncededly did was in fact a breach of the duty of due care. (Hajder v. G. & G. Moderns, 13 A D 2d 651.) The failure of defendant to submit a personal affidavit giving an exculpating version of the accident does not eliminate the factual question of negligence (see Gerard v. Inglese, 11 A D 2d 381, 383). Concur — Breitel, J. P., Stevens, Eager, Steuer and Noonan, JJ.