Opinion
Argued February 9, 1981
Decided March 24, 1981
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, DOROTHY E. KENT, J.
Martin S. Rothman and Joseph Irom for appellant.
William F. McNulty, Joseph W. Conklin and Anthony J. McNulty for defendants and third-party plaintiffs-respondents.
Steven B. Prystowsky and Patrick A. Lyons for third-party defendant-respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the case remitted to that court for determination of questions of fact.
It cannot be said as a matter of law that no jury could find that in clearing the flatbed from which the unloading was being conducted by so narrow a margin as one foot the driver of the soda truck failed to exercise reasonable care in the circumstances. Similarly, it cannot be concluded as a matter of law that, if the driver were thus found to have been negligent, his negligence was not a substantial factor in bringing about plaintiff's injuries. Inasmuch as the disposition at the Appellate Division was on the law, the case must be remitted to that court pursuant to CPLR 5613.
Order reversed, with costs, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.
Chief Judge COOKE and Judges GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur; Judge JASEN dissents and votes to affirm for reasons stated in the memorandum at the Appellate Division ( 72 A.D.2d 531).