Sanzo v. Toklas , 10 A.D.2d 931 ( 1960 )

Appeal from an order of the Supreme Court at Special Term, entered January 4, 1960, which granted a motion by plaintiff pursuant to rule 113 of the Rules of Civil Practice for summary judgment.

Memorandum by the Court.

Order granting summary judgment in this negligence action reversed, on the law, with $20 costs and disbursements to defendant-appellant, and the motion is denied, with $10 costs, in its entirety. As to the plaintiff husband, who operated the automobile in which both plaintiffs were riding, there is at least an issue as to his contributory negligence. Such contributory negligence, if any, is of course not attributable to plaintiff wife. Defendants’ version of the manner in which the two cars collided is far from convincing, and might upon a trial well justify setting aside a verdict favorable to defendants as contrary to the weight of the evidence (Powers v. Medina, 1 A D 2d 727). On these papers, however, triable issues survive which preclude finding defendants liable as a matter of law. Nor are these issues dissolved by photographs tending to support plaintiffs’ version of the occurrence of the accident, but which do not conclusively destroy defendants’ version. In any event, the conflicting narratives of the occurrence of the accident and the photographs do not establish as a matter of law that any negligence of defendants was the proximate cause of the accident.