| N.Y. App. Div. | May 21, 1962
In a contract action to recover the face amount of an “All Common Carrier Passenger Accident” insurance policy issued by defendant to plaintiff’s intestate, plaintiff appeals from an order of the Supreme Court, Kings County, dated September 6, 1961, which granted the defendant’s motion for summary judgment dismissing the complaint and which denied his (plaintiff’s) cross motion for summary judgment for the sum demanded in the complaint, pursuant to rule 113 of the Rules of Civil Practice. Order modified by striking out the first ordering paragraph granting defendant’s motion for summary judgment, and by substituting therefor a paragraph denying such motion. As so modified, order affirmed, without costs. The record discloses the existence of issues of fact which may not be decided summarily on motion (Cardinal Lbr. Co. v. Lincoln Park Bldrs. Supply, 8 A D 2d 839). The plaintiff’s affidavits (in support of his cross motion and in opposition to the defendant’s motion) raise an issue of fact as to where decedent was when she was assaulted. Under such circumstances, the question whether the decedent, within the terms and meaning of the insurance policy, was a fare-paying passenger boarding a public conveyance at the time of the assault, should be determined upon a trial of the action. Under the summary judgment rule the test is whether or not a triable issue of fact exists, and such issue may be disclosed either by the pleadings or the affidavits (Curry v. Mackenzie, 239 N.Y. 267" date_filed="1925-01-21" court="NY" case_name="Curry v. MacKenzie">239 N. Y. 267; Gent v. Midtown Holdings Corp., 10 A D 2d 901; Hellmuth v. Brandin, 3 A D 2d 997). Moreover, the affidavits need not necessarily be consistent with the allegations contained in the pleadings or bill of particulars (Rizzi v. Sussman, 9 A D 2d 961; Levitz v. Robbins Music Corp., 6 A D 2d 1027). Beldock, P. J., Ughetta, Kleinfeld, Brennan and Hill, JJ., concur. [30 Misc. 2d 943" date_filed="1961-08-21" court="N.Y. Sup. Ct." case_name="Rock v. Fidelity & Casualty Co.">30 Misc 2d 943.]