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

Sandra MATA and Ernest Mata, Jr., Individually and as Husband and Wife, Plaintiffs-Respondents, v. Darren M. GRESS, Defendant-Appellant, et al., Defendant.

Decided: April 29, 2005

PRESENT:  GREEN, J.P., SCUDDER, GORSKI, PINE, AND LAWTON, JJ. Gibson, McAskill & Crosby, LLP, Buffalo (Robert J. Mullins, II, of Counsel), for Defendant-Appellant. Kevin A. Ricotta, Attorneys & Counselors at Law, Buffalo (Nancy M. Langer of Counsel), for Plaintiffs-Respondents.

Plaintiffs commenced this action seeking damages for injuries sustained by Sandra Mata (plaintiff) in a motor vehicle accident.   Supreme Court erred in granting those parts of plaintiffs' motion with respect to Darren M. Gress (defendant) seeking partial summary judgment on the issue of negligence and dismissal of his affirmative defense alleging plaintiff's comparative negligence.   We note at the outset that, although the court also granted that part of plaintiffs' motion seeking dismissal of defendant's affirmative defense alleging the failure of plaintiff to wear her seatbelt, defendant has not addressed that part of the order.   Defendant therefore is deemed to have abandoned his appeal with respect to the dismissal of that affirmative defense (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 609 N.Y.S.2d 745).   In addition, as noted by the court in its order, those parts of plaintiffs' motion with respect to the remaining defendant were resolved by a stipulated order.

 In support of the motion, plaintiffs submitted the deposition testimony of plaintiff in which she testified that she had exited the New York State Thruway and that the vehicle driven by defendant rear-ended her vehicle while she was stopped at a yield sign and was waiting to merge into traffic on Ridge Road in Buffalo.   Plaintiffs thereby met their initial burden on the motion by establishing a prima facie case of negligence, and they established their entitlement to judgment on the issues of negligence and comparative negligence (see Danner v. Campbell, 302 A.D.2d 859, 754 N.Y.S.2d 484;  Ruzycki v. Baker, 301 A.D.2d 48, 50, 750 N.Y.S.2d 680;  Pitchure v. Kandefer Plumbing & Heating, 273 A.D.2d 790, 710 N.Y.S.2d 259).   In opposition to the motion, defendant submitted an affidavit in which he stated that plaintiff's vehicle had stopped at the yield sign and that he followed the vehicle when it accelerated into an open lane of traffic on Ridge Road. According to defendant, plaintiff abruptly stopped her vehicle without any apparent reason, and defendant's vehicle, which was traveling at a speed of approximately five miles per hour, struck the rear of plaintiff's vehicle.   We conclude that defendant offered a non-negligent explanation for the accident and thus raised an issue of fact sufficient to defeat the motion with respect to the issues of negligence and comparative negligence (see Danner, 302 A.D.2d at 859-860, 754 N.Y.S.2d 484;  cf. Barton v. Youmans, 13 A.D.3d 1151, 788 N.Y.S.2d 530).

It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, those parts of the motion with respect to defendant Darren M. Gress on the issues of negligence and comparative negligence are denied and the third affirmative defense is reinstated.