Donlon v. Pugliese , 27 A.D.2d 786 ( 1967 )

Hebdihy, J.

(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.