In Connell v. Buitekant (17 A D 2d 944) we observed, in quoting from Schneider v. Miecznikowski (16 A D 2d 177) that summary judgment “ may not properly be invoked in automobile accident cases, except in rare instances.” That reiterated our views in Hajder v. G. & G. Moderns, Inc. (13 A D 2d 651) where we said: “ Actions in negligence to recover for personal injuries do not readily lend themselves to disposition under the summary judgment rule.”
Plaintiffs claim that defendants’ vehicle, which was being driven in a southerly direction on Fifth Avenue in the Borough of Manhattan, suddenly veered into the northbound lane and struck plaintiffs’ automobile. It is averred that the driver of defendants’ car, instead of going to the right of a barrier in the road, crossed over the center white line and passed to the left of the barrier. In Gerard v. Inglese (11 A D 2d 381) although it was recognized that proof of the sudden swerving of an automobile from the highway is not prima facie proof of negligence, summary judgment was awarded plaintiff because defendant made no attempt to explain her failure to control the operation of her automobile.
Here, all that was submitted in opposition to the motion for summary judgment was an affidavit by an attorney, who had no personal knowledge of the facts, to which was annexed what purported to be the unsworn statement of the driver of defendants’ automobile. Defendants also called attention to excerpts from an examination before trial of one of the plaintiffs.
Of course, if a plaintiff’s own papers present matter which demonstrates the existence of a triable issue, then an affidavit by a person having knowledge of the facts in opposition to the motion may not be necessary. (Ortiz v. Knighton, 14 A D 2d 679; Connell v. Buitekant, 17 A D 2d 944, supra.) But it may not safely be assumed by counsel for defendants in these negligence cases that every such suit ipso facto presents triable issues. It is incumbent on the defendant to come forward with facts which show the presence of a triable issue.
The cavalier response to plaintiffs’ motion in the instant case by the interposition of the incompetent affidavit of an attorney having no personal knowledge, buttressed by an equally incompetent unsworn statement of the driver, failed to meet the burden which defendant was under a duty to assume in opposing plaintiffs’ motion. Moreover, the addition of portions of the examination before trial of one of the plaintiffs did not cure the deficiency since the testimony was not materially in conflict *15with plaintiffs’ version of the accident. As the record now stands, based upon proper and competent affidavits, there is no demonstration of any triable issue.
I would, therefore, reverse the order and grant plaintiffs’ motion for summary judgment.
Babin, Stevens and Noonan, JJ., concur in Per Curiam opinion; Valente, J., dissents in opinion in which Breitel, J. P., concurs.
Order, entered on September 18,1962, affirmed, with $20 costs and disbursements to the respondents.