Opinion
May 31, 1996
Appeal from the Supreme Court, Monroe County, Frazee, J.
Present — Lawton, J.P., Fallon, Callahan, Doerr and Davis, JJ.
Order unanimously reversed on the law without costs and motion denied. Memorandum: Supreme Court erred in granting plaintiff's motion for partial summary judgment on liability. Summary judgment is rarely appropriate in negligence cases ( see, Andre v Pomeroy, 35 N.Y.2d 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 plaintiff's 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 plaintiff's comparative fault and whether defendant Licata acted reasonably under the circumstances, precluding summary judgment ( see, e.g., Gudenzi-Ruess v. Custom Envtl. Sys., 212 A.D.2d 952, 953; see also, Cincotta v. Johnson, 130 A.D.2d 539, 540-541).