Fensterer v. Cohen

Mario Pittoni, J.

Motion by the plaintiffs for summary judgment in this personal injury action is denied.

The defendant driver claims that when he saw the car in front of him stop, he applied his brakes and they did not hold. He claims further that up to that time the brakes had operated properly.

On the day of the accident it had been raining very hard for several hours. The defendant driver says that at the time of the accident Ms brakes and lining had gotten wet.

Triable issues of fact exist which preclude the granting of summary judgment (Schaeffer v. Caldwell, 273 App. Div. 263 [4th Dept.]; Lepke v. Sclafani & Sons, 20 Misc 2d 50 [Sup. Ct., Kings County]; Kalkin v. Marken, 87 N. Y. S. 2d 839 [Sup. Ct., Kings County]). Motion denied.