The opinion
Kehoe, J.
(dissenting). I respectfully dissent and would affirm Supreme Court’s order granting plaintiff’s motion for partial summary judgment on liability. Defendant Brian C. Martin failed to offer a non-negligent explanation for the collision. Martin admits that he proceeded at 40 miles per hour over the hill despite his admitted inability to see traffic conditions on the other side. He also admits that he could not stop in time to avoid hitting plaintiffs car, the last in a line of 30 *791 cars that had been brought safely to a stop in response to road construction. Under the circumstances, the court was warranted in concluding as a matter of law that Martin breached his duty to keep a proper lookout and maintain a reasonably safe rate of speed and distance, taking into account adverse road conditions (see, Mitchell v Gonzalez, 269 AD2d 250 ; Downs v Toth, 265 AD2d 925 ; Johnson v Phillips, 261 AD2d 269, 271 ). (Appeal from Order of Supreme Court, Erie County, Whelan, J. — Summary Judgment.) Present — Pine, J. P., Hayes, Kehoe and Lawton, JJ. (Filed May 31, 2000.)