Miles v. Licata

Order unanimously reversed on the law without costs and motion denied. Memorandum: Supreme Court erred in granting plaintiffs motion for partial summary judgment on liability. Summary judgment is rarely appropriate in negligence cases (see, Andre v Pomeroy, 35 NY2d 361, 364). Indeed, a plaintiff is generally entitled to summary judgment " 'only in cases in which there is no conflict at all in the evidence, the defendant’s conduct fell far below any permissible standard of due care, and the plaintiffs conduct either was not really involved (such as with a passenger) or was clearly of exemplary prudence in the circumstances.’ (4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3212.03)” (Andre v Pomeroy, supra, at 365). Here, questions of fact exist regarding plaintiffs comparative fault and whether defendant Licata acted reasonably under the circumstances, precluding summary judgment (see, e.g., Gudenzi-Ruess v Custom Envtl. Sys., 212 AD2d 952, 953; see also, Cincotta v Johnson, 130 AD2d 539, 540-541). (Appeal from Order of Supreme Court, Monroe County, Frazee, J. — Summary Judgment.) Present — Lawton, J. P., Fallon, Callahan, Doerr and Davis, JJ.