EATON v. DI PERNO

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

Raymond EATON, Plaintiff-Respondent, v. Damian R. DI PERNO, Individually and as Administrator of the Estate of Christine Di Perno, Deceased, Defendant-Appellant.

Decided: March 31, 1999

Present:  GREEN, J.P., PINE, WISNER, SCUDDER and CALLAHAN, JJ. David Christopher Caywood, Law Firm of Frank R. Bayger, Buffalo. Gregory Thomas Phillips, Connors & Corcoran, L.L.P., Rochester, for defendant-appellant. J. Michael Hayes, Buffalo, for plaintiff-respondent.

 Supreme Court erred in granting plaintiff's motion for partial summary judgment on the issue of liability.   Plaintiff commenced this action to recover damages for injuries he sustained in a one-car accident that occurred on a gravel road in the Town of Gainesville.   Plaintiff was the passenger in the vehicle driven by defendant's decedent, who died as a result of her injuries.   Plaintiff alleges that decedent was driving too fast “for the conditions”.   The inference of negligence is dependent upon the speed of the vehicle at the time of the accident (see, Vehicle and Traffic Law § 1180 [a], [e] ).   Even assuming, arguendo, that plaintiff met his initial burden, we conclude that defendant raised triable issues of fact concerning the speed at which decedent was driving and whether that speed was reasonable.   While plaintiff's expert opines that the vehicle was traveling in excess of 62 miles per hour, the assumptions upon which that opinion is based were questioned by defendant's expert.   Defendant's expert opines, based upon a different set of assumptions, that the vehicle was traveling at 49 miles per hour and that such a speed was reasonable.   Based on the conflicting expert opinions, summary judgment was not appropriate (see, Ugarriza v. Schmieder, 46 N.Y.2d 471, 475-476, 414 N.Y.S.2d 304, 386 N.E.2d 1324;  Andre v. Pomeroy, 35 N.Y.2d 361, 364-365, 362 N.Y.S.2d 131, 320 N.E.2d 853).

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: