DONG SOON KIM v. SWIFT TRANSPORTATION CO INC (2001)

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Posner, J.), dated July 13, 2000, which granted the motion of the plaintiff Dong Soon Kim for summary judgment on the issue of liability.   The appeal brings up for review so much of an order of the same court, dated October 26, 2000, as, upon granting the defendants' motion for leave to reargue, in effect, granted that branch of the plaintiffs' motion which was for partial summary judgment to the extent of determining that the defendants were negligent.

ORDERED that the appeal from the order dated July 13, 2000, is dismissed, as that order was vacated by the order of the same court, dated October 26, 2000, made upon reargument;  and it is further,

ORDERED that the order dated October 26, 2000, is reversed insofar as reviewed, on the law, and the plaintiffs' motion for summary judgment is denied in its entirety;  and it is further,

ORDERED that the defendants are awarded one bill of costs.

In its order dated October 26, 2000, the Supreme Court, Queens County, correctly determined that issues of fact existed as to the plaintiffs' alleged comparative negligence.   The car driven by the plaintiff Dong Soon Kim was towing the car driven by the plaintiff Paul S. Kim on a blind curve, at night, on an unlit, rural interstate highway, when a collision occurred with the truck owned by the defendant Swift Transportation Co., Inc., and driven by the defendant Enton Bexho.   The Supreme Court erred, however, insofar as, in effect, it found the defendant driver liable as a matter of law.   Under the unusual circumstances of this case, whether the defendant driver was negligent in the operation of his truck is also a factual issue for the jury's resolution.