
    Cosimo Polino, Plaintiff, v. Suzanne E. Swaine, Defendant.
    Supreme Court, Special Term, Erie County,
    February 7, 1962.
    
      
      Goldman <§ Costa for plaintiff. Gibbons, Pottle, O’Shea & Adamson for defendant.
   Matthew J. Jasen, J.

This is a motion by the plaintiff in a negligence action for a summary judgment against the defendant driver.

The question before the court is whether there are present any triable issues of fact concerning the negligence of the defendant and the contributory negligence of the plaintiff.

On the papers submitted it is conceded that the road was icy, that plaintiff’s vehicle was halted at an intersection, that defendant observed him 300 feet away, that defendant was traveling five miles per hour when 100 feet from plaintiff. Defendant sets forth no evidentiary facts that the accident was occasioned by a defective condition of the vehicle, nor by any other cause.

It is clear that the accident happened solely by reason of defendant’s negligent operation of her vehicle. Accordingly, the court finds there are no triable issues of fact.

Defendant further maintained that the impact alleged by plaintiff was insufficient to produce any personal injury and thus a factual issue is raised. However, subdivision 3 of rule 113 of the Rules of Civil Practice explicitly states: “The existence of a triable issue of fact as to the amount or the extent of the damages shall not bar the granting of summary judgment. If only such a triable issue of fact is presented, the court shall order an immediate hearing before a referee * * * to assess the amount or the extent of the damages ” (italics supplied).

In the case at bar the defendant has merely made a conclusory statement to the effect that plaintiff did not suffer any injuries-. The defendant’s contention is untenable. Motion for summary judgment granted.  