JOHNSON v. TRANSPORTATION GROUP INC 85 (2006)

 Plaintiff commenced this action to recover damages for injuries she sustained in an employment-related accident at a retail store located on premises owned by defendant Benderson 85-1 Trust (Benderson) and leased to plaintiff's employer.   Plaintiff injured her knee while jumping from the back of a tractor-trailer onto a loading platform behind the store.   The tractor-trailer had been driven to the loading platform by an employee of defendant Transportation Group, Inc. (Transportation), which allegedly owned the tractor-trailer.   We note at the outset that the challenge by Benderson to that part of the order and judgment granting plaintiff leave to serve an amended bill of particulars is not properly before us.  “An appeal from only part of an order constitutes a waiver of the right to appeal from the other parts of that order” (Royal v. Brooklyn Union Gas Co., 122 A.D.2d 132, 133, 504 N.Y.S.2d 519;  see 532 Realty Assoc. v. Spearhead Sys., 1 A.D.3d 476, 477, 767 N.Y.S.2d 275;  Whittaker v. Cohen, 178 A.D.2d 941, 578 N.Y.S.2d 321).

 Supreme Court properly denied the motion of Benderson for summary judgment dismissing the third amended complaint against it.   The record establishes that there are triable issues of fact concerning whether the condition of the loading platform was defective or dangerous (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489;  O'Neil v. Holiday Health & Fitness Ctrs. of N.Y., 5 A.D.3d 1009, 1009-1010, 773 N.Y.S.2d 724) and further concerning whether Benderson created such defective or dangerous condition or had actual or constructive notice of it (see generally Atkinson v. Golub Corp. Co., 278 A.D.2d 905, 906, 718 N.Y.S.2d 546;   Telesco v. Bateau, 273 A.D.2d 894, 711 N.Y.S.2d 371;  Smith v. May Dept. Store, Co., 270 A.D.2d 870, 705 N.Y.S.2d 153;  Tenebruso v. Toys “R” Us-NYTEX, 256 A.D.2d 1236, 1237, 682 N.Y.S.2d 785).

 We further conclude, however, that the court properly granted the motion of Transportation for summary judgment dismissing the third amended complaint against it.   Transportation, as an independent contractor of plaintiff's employer (see generally Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138-140, 746 N.Y.S.2d 120, 773 N.E.2d 485;  Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 587-589, 611 N.Y.S.2d 817, 634 N.E.2d 189), owed no duty to plaintiff to make its deliveries of merchandise to the store in a smaller truck or to provide a trailer with, e.g., a liftgate (see generally Di Ponzio v. Riordan, 89 N.Y.2d 578, 583-586, 657 N.Y.S.2d 377, 679 N.E.2d 616).   We further conclude as a matter of law that there was nothing foreseeably and unreasonably dangerous with respect to the manner in which Transportation's driver positioned the tractor-trailer in order to facilitate the unloading process.

We have considered the contention of Transportation with respect to costs and disbursements and conclude that it is without merit.

It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: