Opinion
February 23, 1965
In a negligence action arising from a collision between two automobiles, the defendants appeal: (1) from an order of the Supreme Court, Nassau County, dated September 9, 1964, which granted plaintiff's motion for summary judgment and directed an assessment of damages; and (2) from an order of said court, made September 10, 1964 upon reargument, which again granted the motion. Appeal from order of September 9, 1964 dismissed, without costs as academic; such order was superseded by the later order of September 10, 1964, made upon reargument. Order of September 10, 1964 reversed, without costs, and plaintiff's motion for summary judgment denied. In our opinion, on this record triable issues of fact exist: (a) as to the alleged negligence of the defendant in falling asleep at the wheel of the automobile while driving ( Smith v. McIntyre, 20 A.D.2d 711; Donahue v. Romahn, 10 A.D.2d 637); and (b) as to the contributory negligence of the plaintiff ( Vignola v. Britts, 11 A.D.2d 801). Beldock, P.J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.