Gonzalez v. Whitney Trucking, Inc.

Appellate Division of the Supreme Court of New York

Gonzalez v. Whitney Trucking, Inc.

11 A.D.3d 382, 783 N.Y.S.2d 558, 2004 N.Y. App. Div. LEXIS 12463

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 26, 2004

StatusPublished

This text of 11 A.D.3d 382 (Gonzalez v. Whitney Trucking, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gonzalez v. Whitney Trucking, Inc., 11 A.D.3d 382, 783 N.Y.S.2d 558, 2004 N.Y. App. Div. LEXIS 12463 (N.Y. Ct. App. 2004).

Pincite

Opinion

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 plaintiffs fellow employee colliding with the truck, plaintiffs testimony and affidavit clearly assert that the truck’s move[383]*383ment 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 of plaintiffs alleged harm.

Appellants’ remaining contentions are unavailing. Concur— Nardelli, J.P., Mazzarelli, Saxe, Ellerin and Marlow, JJ.

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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 plaintiffs fellow employee colliding with the truck, plaintiffs testimony and affidavit clearly assert that the truck’s move[383]*383ment 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 of plaintiffs alleged harm.

Appellants’ remaining contentions are unavailing. Concur— Nardelli, J.P., Mazzarelli, Saxe, Ellerin and Marlow, JJ.

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Bluebook (online)

11 A.D.3d 382, 783 N.Y.S.2d 558, 2004 N.Y. App. Div. LEXIS 12463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzalez-v-whitney-trucking-inc-nyappdiv-2004.