Opinion
October 30, 1959
L. J. Rosenberg for plaintiffs.
Thomas V. Kingham for defendants.
Motion for summary judgment on the issue of liability in an action to recover for personal injuries and loss of services and for an assessment of damages by the court.
A truck, operated by the defendant Walker, was proceeding east on Northern Boulevard, in Flushing, Queens County, and for about 10 or 15 blocks had been traveling behind the automobile operated by the female plaintiff. At 172nd Street the light changed from green to red and said plaintiff stopped. The truck, however, which was proceeding at about 25 miles an hour, approximately 30 feet behind said plaintiff's automobile, crashed into the rear thereof. The defendant Walker testified that he applied his brakes but was unable to stop.
In his opposing affidavit, however, the defendant Walker contends that he "followed the plaintiff's vehicle at a safe distance but as we approached this intersection the traffic signal * * * suddenly turned from green to red * * * whereupon the plaintiff brought her vehicle to an abrupt halt without any signal whatsoever. When she did this I attempted to swerve my vehicle to avoid coming into contact with her, but was unable to do so and my right front fender came into contact with her left rear fender." He also states that the plaintiff "had ample opportunity to avoid this contact by not coming to an unwarranted and abrupt halt for she could have proceeded across the intersection safely."
These are merely conclusions and not the "material facts" required by subdivision 2 of new rule 113 of the Rules of Civil Practice. The record shows that plaintiff stopped for a red light. She was under duty to do so and the defendant's motor vehicle should have been far enough behind her to allow it to be stopped for the same red light without striking the car in front. It is evident upon this record, based as it is principally upon the deposition of the defendant Walker, that the competent producing cause of the accident herein was his failure to maintain a safe distance behind the plaintiff's car, sufficient to stop at the speed he was proceeding without colliding therewith.
Plaintiffs' motion is accordingly granted and an assessment of damages directed upon the payment of the necessary fees.
Submit order.