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

Andrew FULLER, Plaintiff-Respondent, v. RYDER TRUCK RENTAL, INC., Defendant-Appellant.

Decided: November 17, 2006

PRESENT:  KEHOE, J.P., MARTOCHE, SMITH, AND PINE, JJ. Sugarman Law Firm, LLP, Syracuse (Timothy J. Perry of Counsel), for Defendant-Appellant. Stanley Law Offices, Syracuse (Brianne M. Carbonaro of Counsel), for Plaintiff-Respondent.

Plaintiff commenced this action to recover damages for injuries he allegedly sustained when he slipped while climbing into the back of a refrigeration truck and fell from the truck.   The truck was owned by defendant and leased to plaintiff's employer.   Defendant moved for summary judgment dismissing the complaint, and Supreme Court granted only that part of defendant's motion with respect to the breach of express warranty claim.   We reject defendant's contention that the court should have granted the motion in its entirety.   We note at the outset that defendant, as the movant, “must affirmatively establish the merits of its ․ defense[s] and [can]not meet its burden by noting gaps in its opponent's proof” (Orcutt v. American Linen Supply Co., 212 A.D.2d 979, 980, 623 N.Y.S.2d 457).

 With respect to the negligence cause of action, the record establishes that defendant entered into an exclusive and comprehensive maintenance contract for the truck, and thus defendant assumed a duty to act with reasonable care toward the driver of the truck (see generally Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 584-587, 611 N.Y.S.2d 817, 634 N.E.2d 189).   Defendant failed to meet its initial burden of establishing, inter alia, that the allegedly dangerous condition was not visible and apparent or that it had not existed for a sufficient length of time before the accident to permit defendant to discover and remedy it (see Librandi v. Stop & Shop Food Stores, 7 A.D.3d 679, 679-680, 776 N.Y.S.2d 846;  Pelow v. Tri-Main Dev., 303 A.D.2d 940, 940-941, 757 N.Y.S.2d 653).   With respect to the strict products liability cause of action, defendant failed to meet its burden of establishing that there are normal circumstances of use in which the truck would not be unreasonably dangerous without the optional safety features that allegedly were required (see Beemer v. Deere & Co., 17 A.D.3d 1097, 1098, 794 N.Y.S.2d 253;  see generally Scarangella v. Thomas Built Buses, 93 N.Y.2d 655, 661, 695 N.Y.S.2d 520, 717 N.E.2d 679).   Finally, defendant does not address on appeal the court's denial of that part of its motion with respect to the breach of implied warranty claim and thus is deemed to have abandoned any contention with respect thereto (see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 609 N.Y.S.2d 745).

We have considered defendant's remaining contentions and conclude that they are without merit.

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