
    Dorothy R. Abatelli et al., Plaintiffs, v. Donno Co., Inc., Defendant.
    Supreme Court, Special Term, Nassau County,
    May 2, 1960.
    
      
      Peirez, Karmiol $ Rosenthal (Benjamin S. Rosenthal of counsel), for plaintiffs.
    
      Edward A. Harmon for defendant.
   Mario Pittoni, J.

Motion "by the plaintiffs for summary judgment in an action for personal injuries is denied.

The plaintiffs claim that they were stopped for a red light at an intersection and the defendant’s truck struck their car in the rear. They also produced, as part of their motion papers, a copy of the defendant driver’s motor vehicle report which stated in part as follows: ‘1 Vehicle No. 1 was in back of Vehicle No. 2, when light turned green, and traffic started to move. Vehicle No. 2 stopped suddenly when cut off by truck. Vehicle No. 1 swerved but could not avoid Vehicle No. 2.”

This alone raises a triable issue.

However, the defendant’s affidavit also states that its truck was stopped behind the plaintiff’s auto, that when the traffic light changed from red to green, the plaintiff’s auto proceeded at a fast rate, and without giving any warning, came to an abrupt stop. The collision resulted.

Thus, there is an issue as to. whether the defendant was negligent (Zwilling v. Harrison, 269 N. Y. 461; Benigno v. Bellman, 20 Misc 2d 143), and as to whether the plaintiffs’ driver was negligent. Motion denied.  