Opinion
03-23-2017
Luis Flete GUZMAN, Plaintiff–Respondent, v. Jack P. DESANTIS, et al., Defendants, Carlos B. Martinez, et al., Defendants–Appellants.
Marjorie E. Bornes, Brooklyn, 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 A.D.2d 206, 723 N.Y.S.2d 163 (1st Dept.2001) and Mello v. Narco Cab Corp., 105 A.D.3d 634, 963 N.Y.S.2d 581 (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 A.D.3d 113, 117, 35 N.Y.S.3d 84 [1st Dept.2016] ).
SWEENY, J.P., RICHTER, MOSKOWITZ, FEINMAN, GISCHE, JJ., concur.