           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

519
CA 10-02378
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND GREEN, JJ.


JASON A. BRUBAKER, PLAINTIFF-APPELLANT,

                      V                            MEMORANDUM AND ORDER

MARIANNE M. HOUSEKNECHT, DEFENDANT-RESPONDENT.


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.


     Appeal from an order of the Supreme Court, Niagara County
(Richard C. Kloch, Sr., A.J.), entered June 21, 2010 in a personal
injury action. The order, insofar as appealed from, denied the motion
of plaintiff for partial summary judgment on the issue of comparative
negligence.

     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).




Entered:    April 29, 2011                       Patricia L. Morgan
                                                 Clerk of the Court
