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

450
CA 15-01735
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


LISA M. KELLOGG AND RAY L. KELLOGG,
PLAINTIFFS-APPELLANTS,

                      V                           MEMORANDUM AND ORDER

CHARLEEN S. PERNAT AND RONALD J. PERNAT,
DEFENDANTS-RESPONDENTS.


TABNER, RYAN AND KENIRY, LLP, ALBANY (LYNN KNAPP BLAKE OF COUNSEL),
FOR PLAINTIFFS-APPELLANTS.

COSTELLO, COONEY & FEARON, PLLC, CAMILLUS (TERANCE V. WALSH OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Oneida County (Patrick
F. MacRae, J.), entered April 2, 2015. The order, among other things,
denied the motion of plaintiffs for partial summary judgment.

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

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries allegedly sustained by Lisa M. Kellogg (plaintiff) in a motor
vehicle accident. Plaintiff was traveling in the driving lane of a
parking lot when her vehicle collided with a vehicle operated by
Charleen S. Pernat (defendant), which was exiting a parking space. We
conclude that Supreme Court properly denied plaintiffs’ motion for
partial summary judgment on the issue of liability. Here, in support
of their motion, plaintiffs submitted both plaintiff’s own deposition
testimony and that of defendant. Plaintiff testified at her
deposition that the collision occurred when defendant suddenly pulled
out of a parking space, without warning, into the designated driving
lane and plaintiff’s immediate path. Defendant’s deposition
testimony, however, provided a conflicting account of the manner in
which the accident occurred. We thus conclude that there is an issue
of fact whether plaintiff’s own conduct and rate of speed may have
contributed to the collision and thus whether plaintiff was
comparatively at fault (see Drew v J.A. Carmen Trucking Co., Inc., 8
AD3d 1112, 1113; Fisher v Ciarfella, 300 AD2d 1028, 1028), precluding
partial summary judgment.


Entered:    June 10, 2016                       Frances E. Cafarell
                                                Clerk of the Court
