State Farm Automobile Insurance v. Ovola

—Order, Supreme Court, New York County (Edward Lehner, J.), entered June 1, 1993, which granted third-party defendant’s motion for summary judgment and dismissed the third-party *274complaint, and which granted plaintiffs cross-motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, and the motion and cross-motion denied, without costs.

Neither third-party defendant nor plaintiff was entitled to summary judgment here, where each failed in meeting the burden to establish the absence of material issues of fact (see, Gibson v American Export Isbrandtsen Lines, 125 AD2d 65, 74; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). The record indicates that material issues of fact exist, such as whether the third-party defendant was responsible in any way for causing the collision or collisions, and precisely how and by whom the injuries to plaintiffs insured were caused and in what proportions, if determinable. Moreover, it was error to determine issues, on the motion and cross-motion, instead of merely identifying them (see, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Concur—Carro, J. P., Wallach, Kupferman, Ross and Williams, JJ.