Barnes v United Parcel Serv.
2013 NY Slip Op 01915 [104 AD3d 562]
March 21, 2013
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 24, 2013


Nefertari Barnes, Respondent,
v
United Parcel Service et al., Appellants.

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