I concur in the views expressed by Justice Lupiano and in the result reached by the majority opinion, except with respect to the dictum expressed by Justice Sandler which intimates that one party to an action should be required to appear with respect to an application for relief sought solely as against another party.
This is close to the position taken by the dissenters, who without authority, would foreclose the City from its right to continue with its cross claim against its codefendant the Transit Authority, merely because the City did not appear in opposition to the Authority’s motion for summary judgment dismissing the complaint. The effect is to impose upon one defendant the unnecessary burden of submitting opposition to a motion by a codefendant to dismiss the complaint. The incongruity is obvious. One defendant would thereby be obliged to come to the defense of the complaint upon motion by a codefendant to dismiss, on pain of forfeiture of any rights against the moving codefendant under a cross claim for contribution or apportionment previously interposed in the action. There was, however, no obligation upon the City to appear in opposition to the Transit Authority’s motion to dismiss. The fact that the City was served with the moving papers is not dispositive. Such service was apparently made merely to com*257ply with CPLR 2103 (subd [e]) which requires service of all papers on all parties who have appeared. The motion was not directed at the City’s cross claim; nor was any relief sought as against the City. The Transit Authority could have easily sought dismissal of the cross claim when it moved for summary judgment dismissing the complaint. It chose not to do so.
Nor do the doctrines of law of the case, res judicata or collateral estoppel apply to preclude the City with respect to its cross claim, since the City, against whom no relief was sought on the original motion, was not in any way barred by the determination there rendered. The Transit Authority’s original motion to dismiss the complaint did not raise in issue any liability under the cross claim. All that the court could have passed upon on that application was plaintiffs rights as against the Transit Authority. The order granting the Authority’s motion for summary judgment specifically recognizes this in dismissing only the complaint and not the cross claim by the City. The county clerk’s file contains the order of Mr. Justice Martin Evans, granting the Authority’s motion to dismiss the complaint. The proposed order which had been submitted by the Transit Authority included an ordering paragraph dismissing the complaint "and all cross-claims”, against the Authority. Special Term, before issuance of its order, struck so much of the ordering paragraph as sought dismissal of the cross claim, thus clearly demonstrating that the motion before Justice Evans raised only the sufficiency of the complaint, not the cross claim. The order thus conformed to the notice of motion, which sought only dismissal of the complaint.
Moreover, it is of significance here that the theory of liability over on the cross claim, founded upon the alleged negligent operation of the bus by the Transit Authority, is different from the basis of liability which had been asserted by plaintiff in alleging negligence by the Authority in maintaining the sidewalk area at the bus stop. All that the prior order decided was that the Authority was under no legal duty to correct an alleged defective condition on the sidewalk. Plaintiff never asserted any impropriety in the operation of the bus. Nor was the City at all obligated to come to the aid of plaintiff on that motion to advance its theory on which it sought to impose liability against the Authority under its cross claim, which, by virtue of the dismissal of the complaint, in effect survived as a third-party action.
*258The cases cited in the dissent are not to the contrary. Tortora v La Voy (54 AD2d 1036) held only that a defendant who opposed a motion to dismiss made by a codefendant had standing to appeal the order granting dismissal. In Stein v Whitehead (40 AD2d 89) after a jury verdict against both defendants, the trial court set aside the verdict against one defendant. Despite the absence of a cross complaint, it was held that the codefendant could appeal the dismissal because, by reason of the Dole-Kelly* principle of apportionment, the defendant held liable was aggrieved by dismissal of the complaint against the codefendant after trial. Flake v Van Wagenen (54 NY 25) holds only that a defaulting defendant has no right to appeal the judgment entered upon his default. The remedy is to move to vacate the default. In Engel v Aponte (51 AD2d 989), the moving plaintiffs were held bound by unappealed prior orders granting summary judgment and dismissing the complaint. In Abazoglou v Tsakalotos (36 AD2d 516, app dsmd 29 NY2d 544) plaintiff was held bound by a prior order directing that he submit to an examination before trial in New York. It is plain that these cases are not authority for the proposition asserted in the dissent that there is an obligation on the part of one defendant to oppose a motion addressed to the complaint by a codefendant.
Contrary to the position assumed by the dissent, the doctrine of law of the case has no application to the cross claim by the City for liability over against the Transit Authority. The Practice Commentaries by Professor David D. Siegel (McKinney’s Cons Laws of NY, Book 7B, CPLR C3019:20, p 230) take express note of the independent nature of the cross claim: "If the main action is dismissed, it need not carry down a counterclaim or cross-claim. The court would have discretion to retain either one for trial, as long as there is jurisdiction, even upon a dismissal of the main claim under CPLR 3211 or a summary judgment under CPLR 3212.”
As applied here, the pleadings in the action quite clearly show the independent nature of the cross claim and the fact that liability is predicated upon a theory different from that relied upon by plaintiff. The complaint alleges liability predicated solely upon the failure of the City and the Transit Authority to properly maintain the sidewalk and street in a reasonably safe condition, free of defects, and in permitting *259the curb area to remain in a dangerous, defective and unsafe condition. There is no claim alleged for negligence by the Authority in the operation of the bus. The cross claim by the City for liability over against the Transit Authority, however, is predicated on general allegations of negligence and seeks apportionment of responsibility under Dole v Dow Chem. Co. (30 NY2d 143, supra). Included within the compass of liability thus asserted in the cross claim is the negligence, if any, of the Transit Authority in the operation of the bus. This issue was never raised by plaintiff and, therefore, could not have been disposed of upon the prior motion by the Authority for summary judgment dismissing the complaint.
As acknowledged in the dissent, third-party liability is premised on a duty owed by the third party to the plaintiff (Nolechek v Gesuale, 46 NY2d 332, concurring opn of Gabrielli, J.; Barry v Niagara Frontier Tr. System, 35 NY2d 629; Rogers v Dorchester Assoc., 32 NY2d 553). As stated in Rogers (supra, p 564): "The rule of apportionment applied when two or more tort-feasors have shared, albeit in various degrees, in the responsibility by their conduct or omissions in causing an accident, in violation of the duties they respectively owed to the injured person.” (Emphasis supplied.)
As Barry and Rogers both hold, the duty owed need not be the same as to each defendant. It is enough that a duty was owed to plaintiff, that it was breached and injury ensued. Apportionment follows, albeit the liability of each codefendant is premised on breach of a different duty. Nor is it at all dispositive that plaintiff predicated liability upon the breach by the Transit Authority of an alleged obligation to maintain the sidewalk and not upon the Authority’s duty owed to properly and safely operate the bus. Although the dismissal may bar plaintiff on all theories as against the Transit Authority, that bar does not extinguish nunc pro tunc the duty owing by the Transit Authority to the plaintiff so as to destroy the rights of third parties, such as the City of New York, flowing from that breach of the Transit Authority’s duty.
The position assumed by the dissent undercuts the very holding by the Court of Appeals in Dole v Dow Chem. Co. (30 NY2d 143, supra). The effect of the Dole apportionment is to afford a defendant the opportunity of interposing a claim for indemnity or apportionment against another party who may be jointly or concurrently responsible for plaintiffs loss. Apportionment or indemnity now turn on relative responsibility, *260not on the choice by plaintiff of which tort-feasor is joined as a defendant in the action and charged with liability for the loss. The dissent, however, returns to the pre-Dole pattern, giving effect to plaintiff’s election among potential tort-feasors where liability against one is premised upon a duty or theory of liability found to be without basis and a clear duty of care owed by that defendant to the plaintiff is ignored. Under Dole, a codefendant cast in liability is not barred from seeking contribution or indemnity by plaintiff’s choice of defendants or theories of liability.
To hold otherwise is to destroy the City’s substantive right to contribution and apportionment of responsibility under Dole v Dow Chem. Co. (supra) without any right or opportunity to defend. The dissent, in response suggests that if the City was in some way "dissatisfied with the adequacy of plaintiff’s response, they should have submitted their own papers in opposition.” The City, however, would have been in no position to tender opposition to the Authority’s motion to dismiss a complaint which sought to impose liability against the Authority for failing to maintain the sidewalk. The City never contended that the Transit Authority had a duty to maintain the curb area. On this appeal, it predicates liability upon the negligence of the Authority in the operation of the bus, an issue which was not raised upon the Authority’s motion to dismiss the complaint. Greenberg v City of Yonkers (37 NY2d 907, affg 45 AD2d 314), therefore, is dispositive of the issue raised here and is not distinguishable as the dissent suggests. The City had no real opportunity to contest the original motion, since the issue litigated therein had no bearing upon the Dole cross claim and since no relief was sought as against the City on that motion. Nor was there a default, as the dissent suggests, by either Royfost or the City on the prior motion, since no relief was sought, against them.
Nor do I agree with the dissent in concluding that there is no merit to the assertion that the bus driver may have been negligent in failing to stop closer to the curb. Sheridan v City of New York (6 AD2d 125, affd 6 NY2d 765) is not dispositive. That case concerned an appeal rendered following a jury trial. There the bus operator had closed its door and the bus had started when "decedent appeared and knocked on the door” and then fell under the moving bus, his foot having "tripped in a hole in the platform” maintained by the City. The court there found no duty of the bus company to exist since, on the *261facts there presented, plaintiff had not been accepted as a passenger nor was he invited to board the bus. Here, the facts appear to establish that plaintiff was walking toward the bus to board when the accident occurred. Moreover, here we are confronted with a motion for summary judgment, not a determination after trial. It has been held that issue finding and not issue determination is the appropriate test upon such a motion. It is not the function of the court to determine the facts, but rather, to determine whether there arguably exists a factual issue (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Falk v Goodman, 7 NY2d 87; Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338; Esteve v Abad, 271 App Div 725). Whether the factual situation here is sufficient to impose a legal duty upon the Transit Authority cannot be disposed of on this record. Determination of the existence of such a duty is primarily dependent upon the proof to be adduced at trial. Nor can I accept the factual determination alluded to by the dissent that the failure of the bus driver to pull up to the curb is insignificant, since the plaintiff would have had to pass over the defective curbstone to reach the bus no matter where the bus stopped. This is also a factual issue which should not be finally disposed of upon motion for summary relief. Whether or not plaintiff could have safely boarded the bus had the operator properly pulled up to the curb is strictly a factual matter to be determined upon the trial.
Accordingly, the order, Supreme Court, New York County (Asch, J.), entered January 9, 1978, should be affirmed, without costs or disbursements.
Dole v Dow Chem. Co., 30 NY2d 143; Kelly v Long Is. Light. Co., 31 NY2d 25.