WARREN v. DONOVAN

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Supreme Court, Appellate Division, First Department, New York.

Kim WARREN, et al., Plaintiffs-Respondents, v. Robert G. DONOVAN, Jr., Defendant-Appellant.

Decided: October 27, 1998

Before SULLIVAN, J.P., ROSENBERGER, NARDELLI, WILLIAMS and ANDRIAS, JJ. Henry W. Davoli, Jr., for Plaintiffs-Respondents. Eileen Donovan, for Defendant-Appellant.

Order, Supreme Court, Bronx County (Lottie Wilkins, J.), entered on or about November 12, 1997, which granted plaintiffs' motion for summary judgment as to liability, unanimously affirmed, without costs.

Assuming defendant's unsigned deposition transcript should be considered even though he had urged the contrary before the motion court, nothing therein avails him.   The rear end collision raises an inference of defendant's negligence (see, Galante v. BMW Fin. Servs., 223 A.D.2d 421, 636 N.Y.S.2d 58), and his proffered explanation-that his vehicle “hydroplaned” in foggy and rainy weather conditions-shows nothing more than that the accident was caused by known adverse road conditions that should have been compensated for (see, Young v. City of New York, 113 A.D.2d 833, 493 N.Y.S.2d 585).   While there is an issue of fact as to whether the infant plaintiff was wearing a seat belt at the time of the accident, such issue bears only upon a possible apportionment between defendant and the adult plaintiff (cf., McMahon v. Butler, 73 A.D.2d 197, 426 N.Y.S.2d 326), not defendant's fault for the accident, and should not bar summary judgment in favor of plaintiffs on the issue of liability.

MEMORANDUM DECISION.