Mariana Huerta–Saucedo, et al., E Plaintiffs–Respondents, v. City Bronx Leasing Inc., et al., Defendants–Appellants, Orlando Garcia, et al, Defendants–Respondents. (2017)

Ogen & Sedaghati, P.C., New York (Eitan A. Ogen of counsel), for Mariana Huerta–Saucedo, Yolanda Hernandez–Romero and Gabriela Cecilia Torres–Salas, respondents.

Richard T. Lau & Associates, Jericho (Christine A. Hilcken of counsel), for Orlando Garcia and Yasmine Garcia, respondents.

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Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered December 7, 2015, which, to the extent appealable, granted plaintiffs' motion for partial summary judgment on the issue of liability, unanimously modified, on the law, to deny the motion to the extent it sought partial summary judgment as to defendants' liability, and otherwise affirmed, without costs.

Plaintiffs met their prima facie burden of establishing both their own lack of culpability and the fault of both driver defendants.  They submitted affidavits averring that they were backseat passengers in a cab driven by defendant Gonzalez, which was hit by a vehicle driven by defendant Yasmine Garcia, when both vehicles entered an intersection with a red light against them.  In opposition, City Bronx and Gonzalez did not dispute that plaintiffs were innocent passengers in their vehicle, but Gonzalez averred that he was proceeding lawfully through the intersection, with a green light in his favor, when the second car made a sudden left turn and hit him.  Codefendants submitted the affidavit of Yasmine Garcia, who averred that she was making a lawful left turn, with a green arrow light in her favor, when she was struck by the other vehicle.  These conflicting versions as to how the accident occurred raise triable issues of fact that preclude summary judgment on the issue of defendants' liability (see Oluwatayo v. Dulinayan, 142 AD3d 113, 119–120 [1st Dept 2016] ).  Accordingly, plaintiffs were entitled only to an order finding that their absence of liability was established (id.;  CPLR 3212 [g] ).

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CLERK