GONZALEZ v. “John Doe,” etc., et al., Defendants.

Reset A A Font size: Print

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

Emmanuel GONZALEZ, et al., Plaintiffs-Respondents, v. WHITNEY TRUCKING, INC., et al., Defendants-Appellants, “John Doe,” etc., et al., Defendants.

Decided: October 26, 2004

NARDELLI, J.P., MAZZARELLI, SAXE, ELLERIN, MARLOW, JJ. Shaub, Ahmuty, Citrin & Spratt, LLP, New York (Timothy R. Capowski of counsel), for appellants. Gardiner & Nolan, Brooklyn (Thomas J. Nolan of counsel), for respondents.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered January 14, 2004, denying defendants-appellants' motion for summary judgment dismissing the complaint as against them, unanimously affirmed, with costs.

According to plaintiff, he was injured when, while directing the filling of one of appellants' dump trucks from a platform on the edge of the truck's container, he fell into the container.   In his deposition testimony and affidavit in opposition, plaintiff consistently attributes his fall to negligence in the operation of the dump truck, which plaintiff states was set in motion while he was perched on the truck's platform, causing him to lose his balance. While appellants have adduced testimony to the effect that the dump truck's movement was caused not by the truck's driver but rather by the impact of a backhoe operated by plaintiff's fellow employee colliding with the truck, plaintiff's testimony and affidavit clearly assert that the truck's movement caused his loss of footing before the impact between the vehicles and this evidence suffices to raise a triable issue as to whether defendant's driver's alleged negligence in operating its vehicle was a proximate cause plaintiff's alleged harm.

Appellants' remaining contentions are unavailing.