Opinion
November 6, 1972
In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Queens County, dated January 17, 1972, which denied his motion for summary judgment. Order reversed, on the law, with $10 costs and disbursements, and motion granted, with assessment of damages to proceed. The uncontested facts shown in the papers on the motion demonstrate that for four hours prior to the accident the individual defendant drove the loaded 15,000 pound truck in question, with knowledge that it was necessary to "mash" the brake down twice in order to slow the vehicle down, and that he made no attempt to repair the defect. In our opinion, these facts demonstrate that the individual defendant was negligent as a matter of law. Since there is no claim of contributory negligence, the motion for summary judgment should have been granted ( Blasi v. Checker Fuel Oil Corp., 20 Misc.2d 359; cf. Guglielmini v. Conigliaro, 35 A.D.2d 524, affd. 29 N.Y.2d 930). To the extent that Serra v. Sosa ( 35 A.D.2d 663) is inconsistent with this result, we decline to follow it. Hopkins, Acting P.J., Munder, Martuscello and Gulotta, JJ., concur; Benjamin, J., dissents and votes to affirm, with the following memorandum: The condition of the brakes presented a triable issue of fact.