Guzman v. Desantis , 148 A.D.3d 580 ( 2017 )

Guzman v Desantis (2017 NY Slip Op 02154)

Guzman v Desantis

2017 NY Slip Op 02154

Decided on March 23, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 23, 2017
Sweeny, J.P., Richter, Moskowitz, Feinman, Gische, JJ.

3496 24086/14E

[*1]Luis Flete Guzman, Plaintiff-Respondent,

v

Jack P. Desantis, et al., Defendants, Carlos B. Martinez, et al., Defendants-Appellants.

Marjorie E. Bornes, Brooklyn, appellants.

Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered January 13, 2016, which, upon reargument, granted plaintiff's motion for summary judgment "on the issue of fault," unanimously modified, on the law, to grant plaintiff's motion to the extent of finding no culpable conduct by plaintiff on the issue of liability, and otherwise affirmed, without costs.

Given that plaintiff expressly sought summary judgment on the issue of liability "against all defendants," and that the court granted plaintiff's motion "on the issue of fault," it appears that both plaintiff and the court misunderstood this Court's holdings in Garcia v Tri-County Ambulette Serv. (282 AD2d 206 [1st Dept 2001]) and Mello v Narco Cab Corp. (105 AD3d 634 [1st Dept 2013]). In fact, plaintiff, as an innocent back-seat passenger, and in the absence of any finding as a matter of law of the defendants' respective liability, was entitled to summary judgment only to the extent of finding no culpable conduct by him on the issue of liability (see Oluwatayo v Dulinayan, 142 AD3d 113, 117 [1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 23, 2017

CLERK