
    Joseph Markowitz, Plaintiff, v. Morris Kleinman, Defendant.
    Supreme Court, Special Term, Queens County,
    July 9, 1959.
    
      Gentry, Daehs & Shayne for plaintiff.
    
      Emanuel Morgenbesser for defendant.
   J. Irwin Shapiro, J.

Motion by plaintiff for summary judgment in an action to recover damages for personal injuries.

While the summary judgment rule, which has now been broadened to include negligence actions, should be liberally construed to effect the purposes intended by such broadening, a defendant still has a constitutional right to a trial no matter how overwhelming the proof in favor of the plaintiff may appear to be if there is any issue of negligence or freedom from contributory negligence for determination.

Upon such a motion the court is not a trier of the facts; even if the court under the circumstances of the case would, on the trial, set aside a verdict in favor of the defendant as contrary to the weight of the evidence, it would, nevertheless, not he justified in granting plaintiff a summary judgment. It is only where, if the same facts which appear in the moving and opposing papers were adduced upon the trial, the court would be warranted in directing a verdict in favor of plaintiff that a summary judgment is authorized.

From the facts in this case, although it is apparent that the plaintiff will have all the better of the situation on a trial, a direction of a verdict in his favor would be improper, for from the facts as they now appear varying inferences as to negligence and contributory negligence may be drawn. The motion is denied. Submit order.  