
    Theresa Annunziata et al., Plaintiffs, v. Jack Ayers, Defendant.
    Supreme Court, Special Term, Nassau County,
    April 11, 1960.
    
      Composto, Hauptman S Mangano for plaintiffs.
    
      Jerome Scharoff for defendant.
   Mario Pittoni, J.

Motion for summary judgment in an action for personal injuries denied. Issues of fact exist which cannot he determined without a trial.

The plaintiff Theresa Annunziata was allegedly injured on July 5, 1957 while a passenger in an automobile owned by the defendant. She claims in her affidavit that when she was seated to the rear of the driver’s seat, the defendant driver, after getting into the motionless car, suddenly adjusted his .seat so that it moved backward .striking her right foot and toes. In her examination before trial she testified she was seated in the middle of the rear seat with her feet under the front seat.

The papers submitted do not show that as a matter of law the plaintiff was free from contributory negligence or that the defendant was negligent. Moreover, insufficient evidence of serious injury is shown to warrant an assessment of damages in this court prior to the trial of older causes on the calendar which cannot be adequately compensated in a lower court.  