Opinion
February 15, 1960
In an action to recover damages for personal injuries alleged to have been caused by the negligent operation of a motor vehicle, the appeal is from an order which (1) granted a motion for summary judgment striking out the answer, and (2) directed an assessment of damages. Respondent was asleep in the motor vehicle, which she owned and which was being operated by appellant, when he fell asleep or "blacked out" and it veered to the left and collided with a telephone pole, causing the injuries complained of. Order reversed, without costs, and motion denied. The record presents triable issues which may not be resolved on a motion for summary judgment ( Phelan v. Houghton, 9 A.D.2d 767, revg. 16 Misc.2d 227; Butler v. Albert, 1 A.D.2d 43). Nolan, P.J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.