Babcock v. Roche

—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Rockland County (Miller, J.), dated June 30, 1998, which granted the plaintiff’s motion for partial summary judgment on the issue of liability. Ordered that the order is reversed, on the law, with costs, and the motion is denied without prejudice to renewal upon completion of discovery. Upon the record presented, the Supreme Court erred in granting the plaintiff’s motion for partial summary judgment on the issue of liability. There was no evidence presented as to whether the plaintiff’s actions in response to the emergency situation created when the defendants’ vehicle crossed a double 513 yellow line were reasonable, or whether any conduct by the plaintiff contributed to the cause of the automobile accident. These facts are exclusively within the knowledge of the plaintiff and, therefore, summary judgment should have been denied, without prejudice to renewal upon the completion of discovery (see, CPLR 3212 [f]; Hentschel v Campbell Carpet Servs., 256 AD2d 500). Santucci, J. P., Joy, Feuerstein and Schmidt, JJ., concur.