JASON BRUBAKER PLAINTIFF APPELLANT v. MARIANNE HOUSEKNECHT DEFENDANT RESPONDENT

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

JASON A. BRUBAKER, PLAINTIFF–APPELLANT, v. MARIANNE M. HOUSEKNECHT, DEFENDANT–RESPONDENT.

CA 10–02378

Decided: April 29, 2011

PRESENT:  SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND GREEN, JJ. COLLINS & BROWN, LLC, BUFFALO (LUKE A. BROWN OF COUNSEL), FOR PLAINTIFF–APPELLANT. BAXTER SMITH & SHAPIRO, P.C., WEST SENECA (WILLIAM BOLTREK, III, OF COUNSEL), FOR DEFENDANT–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff commenced this action seeking damages for injuries he allegedly sustained when the vehicle he was driving was rear-ended by a vehicle driven by defendant.   Plaintiff moved for partial summary judgment determining that defendant was negligent and that plaintiff was free from comparative negligence.   Contrary to plaintiff's contention, Supreme Court properly granted the motion only with respect to the issue of defendant's negligence.  “Viewing the evidence in the light most favorable to the nonmoving party, as we must ․, we conclude that there are issues of fact that preclude summary judgment” with respect to the issue of plaintiff's comparative negligence, i.e., whether plaintiff's own conduct or the alleged failure of his brake lights to function contributed to the accident (Russo v. YMCA of Greater Buffalo, 12 AD3d 1089, 1089, lv dismissed 5 NY3d 746;  see Chilberg v. Chilberg, 13 AD3d 1089, 1090;  see generally Ramadan v. Maritato, 50 AD3d 1620).

Patricia L. Morgan

Clerk of the Court