BUFFA v. Leo Castillo, Defendant–Respondent. (2017)

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered August 17, 2016, which denied defendants-appellants' (the Carr defendants) motion for summary judgment dismissing the complaint, and granted plaintiff's cross motion for summary judgment on the issue of liability, unanimously modified, on the law, to grant plaintiff's cross motion for summary judgment only to the extent of finding no culpable conduct by plaintiff on the issue of liability, and otherwise affirmed, without costs.

Plaintiff, a passenger in a car driven by defendant Ian James Carr, allegedly sustained injuries when Carr's vehicle and the vehicle driven by defendant Leo Castillo collided in an intersection.

The motion court correctly denied the Carr defendants' motion, as issues of fact exist as to which defendant driver had the right-of-way (see Vehicle and Traffic Law § 1141; Espinal v. Volunteers of Am.-Greater N.Y., Inc., 121 AD3d 558 [1st Dept 2014] ). Given that issues of fact exist as to which vehicle was responsible for the accident, it is not appropriate to grant plaintiff summary judgment on the issue of liability as against any defendant, and we thus modify to the extent indicated (see Oluwatayo v. Dulinayan, 142 AD3d 113, 119 [1st Dept 2016] ).