Barnes v. United Parcel Service

104 A.D.3d 562, 960 N.Y.S.2d 648

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2013
• Status: Published

Opinion

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 plaintiffs 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 AD3d 416 [1st Dept 2009]; Nevarez v S.R.M. Mgt. Corp., 58 AD3d 295, 298 [1st Dept 2008]). Concur — Sweeny, J.E, Acosta, Román, Feinman and Clark, JJ.