LISA ANN PRIES JONES AND CLAYTON JONES INDIVIDUALLY AND AS HUSBAND AND WIFE PLAINTIFFS APPELLANTS RESPONDENTS v. TIME WARNER CABLE INC ALSO KNOWN AS TIME WARNER INC AND JONATHAN JOSEPH DEFENDANTS RESPONDENTS APPELLANTS (2012)

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Orleans County (James P. Punch, A.J.), entered July 26, 2011 in a personal injury action.   The order granted the motion of plaintiffs for partial summary judgment on the issue of negligence, but denied the motion with respect to comparative negligence.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

With respect to plaintiffs' appeal, we conclude that the court properly determined that there is an issue of fact concerning plaintiff's alleged culpable conduct and thus properly denied that part of her motion seeking dismissal of that affirmative defense.   We agree with plaintiffs that there was no foundation for the opinions offered by the eyewitness in his affidavit.   Nevertheless, his factual assertions alone are sufficient to raise an issue of fact whether, if in fact plaintiff faced an emergency situation, she had a sufficient opportunity to take evasive action to avoid the accident (see Gaeta v. Morgan, 178 A.D.2d 732, 734;  see generally McGraw v. Glowacki, 303 A.D.2d 968, 969).

Frances E. Cafarell

Clerk of the Court