RIVERA v. Now Condo, et al., Defendants. (2000)

Supreme Court, Appellate Division, First Department, New York.

Erami RIVERA, as Administrator of the Estate of Dewell Rivera, Deceased, Plaintiff-Respondent, v. RYDER TRUCK RENTAL, INC., et al., Defendants-Appellants, Now Condo, et al., Defendants.

Decided: October 24, 2000

TOM, J.P., MAZZARELLI, ELLERIN, LERNER and ANDRIAS, JJ.

David Spiegelman, for Plaintiff-Respondent. Michael V. Sclafani, for Defendants-Appellants.

Order, Supreme Court, New York County (Barbara Kapnick, J.), entered on or about April 2, 1999, which denied defendants-appellants' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiff's decedent was fatally injured when the Ryder truck on the back of which he had been riding was backed-up by defendant Nunez, causing decedent to be crushed between the truck's rear end and certain scaffolding immediately behind the truck. The record presents triable issues as to whether defendant Nunez contributed to decedent's harm by failing to exercise reasonable care to ascertain that no one was behind the truck before he backed the truck up against the scaffolding, and whether decedent himself had been negligent to some degree in riding on the back of the truck.

MEMORANDUM DECISION.

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