CONWAY v. Sunset Six Corp., Defendant.

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

Patrick CONWAY, et al., Plaintiffs-Respondents, v. GRAND RENTAL STATION/STORAGE LAND, Defendant-Appellant, Sunset Six Corp., Defendant.

Decided: June 20, 2002

NARDELLI, J.P., SAXE, BUCKLEY, SULLIVAN, and GONZALEZ, JJ. Maxwell S. Pfeifer, for Plaintiffs-Respondents. Joseph J. Rava, for Defendant-Appellant.

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered March 14, 2001, which denied defendant Grand Rental Station's motion for summary judgment, unanimously reversed, on the law, without costs, and the motion granted.   The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint as against it.

Plaintiff Patrick Conway tripped and fell when his foot got caught in the tail flap of a truck owned and leased to him by defendants.   Plaintiff alleged that a tripping hazard was created because the tail flap had been folded over in an elevated position due to a malfunction in the liftgate's hydraulic control which, in turn, was due to the negligence of defendants.   Plaintiff's deposition testimony established that the hydraulic liftgate was a level transport platform that extended out from the rear of the truck and that the tail flap served as a small ramp to allow smooth transference onto and off the liftgate when it was on the ground.   Although the hydraulic liftgate may have been stuck, Plaintiff also testified that the tail flap was in working order when he fell.   The tail flap was operated manually and its position was independent of the hydraulic system of the liftgate.   Defendants' alleged negligence thus had nothing to do with the tail flap's position when the accident happened.   Since there is no evidence to establish defendant's negligence as a substantial cause of Plaintiff's fall, defendants' motion should have been granted (Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 550, 684 N.Y.S.2d 139, 706 N.E.2d 1163;  Derdiarian v. Felix Contr. Corp, 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666).