Warren v. Donovan

254 A.D.2d 201, 679 N.Y.S.2d 120, 1998 N.Y. App. Div. LEXIS 11392

Opinion

Order, Supreme Court, Bronx County (Lottie Wilkins, J.), entered on or about November 12, 1997, which granted plaintiffs’ motion for summary judgment as to liability, unanimously affirmed, without costs.

Assuming defendant’s unsigned deposition transcript should be considered even though he had urged the contrary before the motion court, nothing therein avails him. The rear end collision raises an inference of defendant’s negligence (see, Galante v BMW Fin. Servs., 223 AD2d 421), and his proffered explanation — that his vehicle “hydroplaned” in foggy and rainy weather conditions — shows nothing more than that the accident was caused by known adverse road conditions that should have been compensated for (see, Young v City of New York, 113 AD2d 833). While there is an issue of fact as to whether the infant plaintiff was wearing a seat belt at the time of the accident, such issue bears only upon a possible apportionment between defendant and the adult plaintiff (cf., McMahon v Butler, 73 AD2d 197), not defendant’s fault for the accident, and should not bar summary judgment in favor of plaintiffs on the issue of liability. Concur — Sullivan, J. P., Rosenberger, Nardelli, Williams and Andrias, JJ.