CULLIPHER v. II

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

Timothy CULLIPHER, Plaintiff-Appellant, v. TRAFFIC MARKINGS, INC., Defendant, Michael E. Niles, II, Defendant-Appellant.  (Appeal No. 3.)

Decided: March 31, 1999

PRESENT:  PINE, J.P., WISNER, HURLBUTT, SCUDDER and CALLAHAN, JJ. Donald S. DiBenedetto, Bond, Schoeneck & King, Watertown, for defendant-appellant. James G. DiStefano, Syracuse, for plaintiff-respondent. Ann K. Kandel, Nesconset.

Defendant Michael E. Niles, II, contends that Supreme Court erroneously granted plaintiff's motion for summary judgment on the issue of liability because questions of fact exist regarding Niles' negligence (based on Niles' own negligence or through circumstances created by defendant Traffic Markings, Inc.) and plaintiff's culpable conduct (whether plaintiff was properly “diligent” in taking actions to avoid the accident).   We agree.

 Summary judgment is a drastic remedy and will be granted only if there is no doubt as to the existence of any triable issues of fact (see, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387).  “[N]egligence actions do not ordinarily lend themselves to summary disposition because, even if the parties agree on the facts, the reasonableness of defendant's conduct is a question for the jury” (Merkley v. Palmyra-Macedon Cent. School Dist., 130 A.D.2d 937, 938, 515 N.Y.S.2d 932, citing Ugarriza v. Schmieder, 46 N.Y.2d 471, 475, 414 N.Y.S.2d 304, 386 N.E.2d 1324).

 The fact that Niles pleaded guilty to a violation of the Vehicle and Traffic Law is sufficient to support a finding of negligence but does not under the circumstances of this case warrant granting summary judgment to plaintiff (see, Luck v. Tellier, 222 A.D.2d 783, 634 N.Y.S.2d 814;  LaForge v. All Am. Car Rental [appeal No. 1], 155 A.D.2d 873, 548 N.Y.S.2d 954).

Judgment unanimously reversed on the law without costs and motion denied.

MEMORANDUM: