Opinion
2013-03-21
Nefertari BARNES, Plaintiff–Respondent, v. UNITED PARCEL SERVICE, et al., Defendants–Appellants.
Lester Schwab Katz & Dwyer LLP, New York (Steven B. Prystowsky of counsel), for appellants. Michelle S. Russo, Port Washington, for respondent.
Lester Schwab Katz & Dwyer LLP, New York (Steven B. Prystowsky of counsel), for appellants. Michelle S. Russo, Port Washington, for respondent.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered June 5, 2012, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants failed to establish entitlement to judgment as a matter of law in this action for personal injuries sustained in a collision between a minivan operated by plaintiff, and a delivery truck owned and operated by defendants. Although plaintiff's approach into the intersection was regulated by a stop sign and defendant driver's approach was not, the record presents a number of triable issues including which vehicle entered the intersection first, who had the right-of-way, and whether the person with the right-of-way exercised due care to avoid the accident ( see Rivera v. Berrios Trans Serv. Inc., 64 A.D.3d 416, 882 N.Y.S.2d 114 [1st Dept. 2009];Nevarez v. S.R.M. Mgt. Corp., 58 A.D.3d 295, 298, 867 N.Y.S.2d 431 [1st Dept. 2008] ).