Order entered May 21, 1968, granting summary judgment to the plaintiff is unanimously reversed on the law, without costs or disbursements, and the motion is denied. The plaintiff, however, in the exercise of discretion and in the interest of justice, shall be granted a preference upon the filing of a proper note of issue and the payment of the necessary fees. While the plaintiff makes out a very strong case toward the granting of summary judgment, there are yet triable issues of fact. It is not quite clear from the facts that the backing up of the car into the plaintiff was the result of negligence on the part of the defendant. However, in the exercise of discretion, and in the interest of justice, we grant the plaintiff a preference upon compliance with the above stated requirements.
Concur — Botein, P.J., Stevens, Capozzoli, Rabin and McNally, JJ.