Majority
p. 1005Conrad Frutos, Respondent, v. Samuel Shapiro et al., Appellants, et al., Defendant.
Order, entered May 18, 1960, granting plaintiff summary judgment in personal injury negligence action, unanimously affirmed, with $20 costs and disbursements to plaintiff-respondent. On this record the order was properly granted. It appears, however, from the briefs submitted on appeal, that defendants may be in a position to interpose issues of fact which would
p. 1006
require a trial. Consequently, in the interest of justice, defendants are entitled to move at Special Term to vacate the order granting the motion for summary judgment upon such terms and conditions as the court may require. It is only in the extraordinary ease, however, that such a failure to raise the issues of fact timely and properly should entitle a party to receive a further opportunity. Such circumstances are found to be present here, because of the possible presence of a substantial issue of contributory negligence, and defendants’ lack of familiarity with the facts of the accident, which unfortunately were not developed in the affidavits. Concur — • Botein, P. J., Breitel, Valente, McNally and Noonan, JJ.