Arakelyan v. Fiallo

Order entered August 7, 1968, denying plaintiffs-appellants’ motion for summary judgment, unanimously reversed on the law, with $50 costs and disbursements to appellants, the motion granted, and the case remanded to the Supreme Court for appropriate proceedings for assessment of damages. The defendant Fiallo, the operator of the truck, although admittedly tired and sleepy, having started work at 4 o’clock in the morning, decided to push on home rather than stop his vehicle. Then, at 11:50 A.M., in the middle of the Queensboro Bridge, he fell asleep at the wheel and his truck left the westbound lane and struck the plaintiffs’ ear in the eastbound lane. Upon these facts, and upon the failure of the defendants to meet their burden, plaintiffs are entitled to judgment as a matter of law. (Vignola v. Britts, 11 A D 2d 801; Butler v. Albert, 1 A D 2d 43; Stanley v. Burnside, 20 Misc 2d 932, affd. 10 A D 2d 652.) Concur—Eager, J. P., Capozzoli, Tilzer, Markewich and Bastow, JJ.