Barba v. Stewart

• Decision Date: 31 March 2016
• Citation: 27 N.Y.S.3d 381 (Mem),137 A.D.3d 704
• Parties: Jeannette BARBA, Plaintiff–Respondent, v. William T. STEWART, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 704

27 N.Y.S.3d 381 (Mem)

Jeannette BARBA, Plaintiff–Respondent,

v.William T. STEWART, et al., Defendants–Appellants.

Supreme Court, Appellate Division, First Department, New York.

March 31, 2016.

Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for appellants.

William Schwitzer & Associates, New York (Stephen J. Smith of counsel), for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered June 16, 2015, which granted plaintiff's motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion denied.

In support of her motion, plaintiff submitted an affidavit, in which she asserted that she was stopped at a red light, when defendant driver was waved through the light by a traffic officer, moved his tour bus into her lane in violation of Vehicle and Traffic Law § 1128, and hit the front of her car. In opposition, defendants presented the affidavit of defendant driver, who stated that after his bus became stopped halfway into an intersection, he moved the bus forward in compliance with a lawful instruction of a traffic officer (Vehicle and Traffic Law § 1102 ), and that the bus was then hit in the rear side by plaintiff's car. These conflicting versions of the accident raise triable issues of fact precluding summary judgment (see Robles v. City of New York, 106 A.D.3d 571, 966 N.Y.S.2d 29 [1st Dept.2013] ).

MAZZARELLI, J.P., RENWICK, MOSKOWITZ, KAPNICK, KAHN, JJ., concur.