Taub v. Clinton Taxi Corp.

Order, entered February 9, 1965, unanimously reversed, on the law, with $30 costs and disbursements, to appellants, and plaintiff’s motion for summary judgment denied. The plaintiff, moving for summary judgment in this action for personal injuries, grounded in negligence, was bound to present a proper factual showing of freedom from contributory negligence. There is no affidavit submitted by the plaintiff himself, and there is no proper showing of what he did in the alleged exercise of due care. Thus, the motion for summary judgment should have been denied. (OPLR 3212, subd. [b] ; 4 Weinstein-Korn-Miller, N. Y. Civ. Prae., par. 3212.03.) Concur — Botein, P. J., Rabin, Tálente, Stevens and Eager, JJ.