TANN v. HERLANDS

As plaintiff concedes, the order granting him partial summary judgment was erroneous. Notwithstanding the fact that defendants' vehicle struck plaintiff's in a rear-end collision, a triable issue of fact exists as to whether plaintiff's operation of his vehicle caused or contributed to the accident ( see, Migdol v Striker, 215 A.D.2d 358). Additionally, defendants' liability should be considered and determined simultaneously with the material, and overlapping, issue of whether the plaintiff was also culpable ( see, Enker v. Slattery Constr. Co., 34 A.D.2d 673).

Concur — Sullivan, J.P., Milonas, Rosenberger, Kupferman and Nardelli, JJ.