ROMERO v. ROMERO (1999)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Dunne, J.), dated April 5, 1999, which denied his motion for partial summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, and the motion is granted.

Under the facts of this case, the Supreme Court improperly denied the plaintiff's motion for partial summary judgment on the issue of liability.   In support of his motion, the plaintiff presented evidence that the subject collision occurred because the driver of the vehicle in which he was a passenger fell asleep at the wheel.   This evidence raised a presumption of negligence on the part of the defendant driver, which the defendants could “overcome by the introduction of competent evidence that excuse[d] or explain [ed] his conduct” (Spivak v. Heyward, 248 A.D.2d 58, 59, 679 N.Y.S.2d 156).  Because the defendants offered no evidence to overcome this presumption of negligence, the plaintiff was entitled to partial summary judgment on the issue of liability (see, Spivak v. Heyward, supra).

MEMORANDUM BY THE COURT.